(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Civil rights attorney's fees awards act of 1976: Public Law 94-559, S. 2278"

9 2d SessfoT } COMMITTEE PRINT 



CIVIL RIGHTS ATTORNEY'S FEES AWARDS 
ACT OP 1976 
(PUBLIC LAW 94-559, S. 2278) 



SOURCE BOOK: LEGISLATIVE HISTORY, 
TEXTS, AND OTHER DOCUMENTS 



PREPARED BY THE 

SUBCOMMITTEE ON CONSTITUTIONAL EIGHTS 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 




Printed for the use of the Committee on the Judiciary 



U.S. GOVERNMENT PRINTING OFFICE 
79-586 O WASHINGTON : 1976 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price $2.95 
Stock Number 052-070-03911-7 



COMMITTEE ON THE JUDICIARY 



JAMES O. EASTL 
JOHN L. McCLELLAN, Arkansas 
PHILIP A. HART, Michigan 
EDWARD M. KENNEDY, Massachusetts 
BIRCH BAYH, Indiana 
QUENTIN N. BURDICK, North Dakota 
ROBERT C. BYRD, West Virginia 
JOHN V. TUNNEY, California 
JAMES ABOUREZK, South Dakota 



», Mississippi, Chairman 

ROMAN L. HRUSKA, Nebraska 

HIRAM L. FONG, Hawaii 

HUGH SCOTT, Pennsylvania 

STROM THURMOND, South Carolina 

CHARLES McC. MATHIAS, Jr., Maryland 

WILLIAM L. SCOTT, Virginia 



Subcommittee on Constitutional Rights 



JOHN V. TUNNEY, California, Chairman 



JOHN L. McCLELLAN, Arkansas 
EDWARD M. KENNEDY, Massachusetts 
BIRCH BAYH, Indiana 
PHILIP A. HART, Michigan 
JAMES ABOUREZK, South Dakota 



HUGH SCOTT, Pennsylvania 
ROMAN L. HRUSKA, Nebraska 
HIRAM L. FONG, Hawaii 
STROM THURMOND, South Carolina 



Jane L. Frank, Chief Counsel and Staff Director 
Robert A. Malson, Counsel and Editor 
W. Dean Drake, Chief Clerk 
Karl Pilger, Legal Intern 
Sheri Ley, Research Assistant 
Elsa Saxod, Research Assistant 



(ID 



PREFACE 



It is an honor to present to the Senate and to the general public 
this compilation of materials relating to the legislative history of 
Public Law 94-559, the Civil Rights Attorney's Fees Awards Act 
of 1976. This landmark legislation, in my view, will go far to insure 
that the statutory civil rights already protected by our Constitution 
can be vindicated whenever they are denied, without regard to the 
victim's ability to afford a private attorney to argue his or her case. 

This source book is an effort to bring together in one publication the 
legislative history which led to the enactment of Public Law 94-559. 
In addition, it includes a number of tables and indexes which may 
help shed light on the growing law in this field. 

The design and overall coordination of this book was the responsi- 
bility of Robert A. Malson, Counsel to the Subcommittee. Many of 
the indexes and tables were prepared at our request by Mary Frances 
Derfner, the Director of the Attorneys' Fees Project of the Committee 
for Civil Rights Under Law. In addition, the assistance of the staff 
of the Congressional Research of the Library of Congress proved 
invaluable. ^ 

I would like to express a special word of gratitude to Senator Philip 
A. Hart of Michigan who is retiring this year after 18 years of service 
in the Senate. His dedication and faith in our Constitution as the 
embodiment of the spirit of freedom and justice and his impeccable 
record and strong leadership in the civil rights struggles of the Con- 
gress have left their mark in the minds of all of us who have come to 
know him. Without his hard work in the Judiciary Committee this 
statute, like the Voting Rights Act, would not have become law at the 
time that it did. The Nation owes much to Senator Hart, He will be 
missed in the Senate. 

John V. Tuxxey, Chairman, 
Judiciary Subcommittee on Constitutional Bights. 

(HI) 



CONTENTS 



Page 

Preface... m 

Topical index of items covered in the legislative history vn 

Congressional Debate Speaker's Index: 

Senate xi 

House of Representatives xn 

Table of cases cited in legislative history xni 

Text of Public Law 94-559 (S. 2278), The Civil Rights Attornev's Fees 

Awards Act of 1976 (October 19, 1976) xvn 

Introduction of S. 2278 and Judiciary Committee Report 

Statement of Senator John V. Tunney upon introducing S. 2278 (August 1, 

1975) 3 

Senate Report No. 94-1011 (June 29, 1976) 7 

Senate Debates 1 

122 Cong. Rec. No. 143, Daily Ed., September 21, 1976: 

[S. 16250-16263] 17 

[S. 16267-16270] 54 

[S. 16280] 63 

122 Cong. Rec. No. 144, Daily Ed., September 22, 1976: 

[S. 16390] 63 

[S. 16427-16434] 64 

[S. 16445-16457] 84 

[S. 16467] 108 

122 Cong. Rec. No. 145, Dailv Ed., September 23, 1976: 

[S. 16473-16478] 109 

[S. 16481-16482] 127 

[S. 16484-16485] 133 

[S. 16489-16491] 133 

[S. 16493-16494] 139 

122 Cong. Rec. No. 146, Dailv Ed., September 24, 1976: 

[S. 16565-16567] 143 

[S. 16595] 146 

122 Cong. Rec. No. 147, Dailv Ed., September 27, 1976: 

[S. 16649] 146 

[S. 16652] 147 

[S. 16656-16666] 148 

[S. 16673] 175 

122 Cong. Rec. No. 148, Daily Ed., September 28, 1976: 

[S. 16876-16877] 176 

(S. 16879-16884] 177 

122 Cong. Rec. No. 149, Dailv Ed., September 29, 1976: 

[S. 17048-17053] . 191 

Committee Reports 

House Report No. 94-1558 (September 15, 1976) 209 

House Report No. 94-1741 (September 30, 1976) 231 

Text of House Resolution 1591 231 



Congressional Record pages (daily edition) are shown in brackets. 

(V) 



VI 



House of Representatives Debates 



122 Cong. Rec. No. 151, Daily Ed., October 1, 1976: Page 

[H. 12150-12152] 235 

122 Cong. Rec. No. 151, part II, Daily Ed., October 1, 1976: 

[H. 12153-12156] 241 

[H. 12158-12167] 251 

Appendix 

A. Statutes covered or amended by S. 2278 281 

B. Citations of pre-Alyeska opinions awarding attorney's fees in civil 

rights cases under the "Private Attorney General" concept 291 

C. Index of key votes on S. 2278: Consideration, cloture, amendments 

and final passage 293 

D. Texts of amendments to S. 2278 introduced in the Senate 295 

E. Federal attorney's fees statutes 303 



TOPICAL INDEX > 

Alternate grounds, fees awarded when related to substantial fee claim: P a & e 
[H. Rep. 4.] 212 

Alyeska, bill designed to overcome: 

[S. Rep. L 4, 5] 7, 10, 11 

[S16251, S16252, S16254, S16431, S16491, S16664, S17052] 18, 

21, 27, 74, 137, 169, 200 

[H. Rep. 2, 3, 9] 210, 211, 217 

[H12150, H12154, H12155, H12159, H12160, H12161, H12162, 

H12163, H12164, H12165]. __235, 242, 245, 252, 254, 257, 260, 263, 265, 266 

Amount of fees, method of computing: 

[S. Rep. 6] 12 

[S16258, S16432, S16449, S16491, S16665, S17052]__ 35, 77, 89, 137, 172, 200 

[H. Rep. 6, 8, 9] 214, 216, 217 

[H12151, H12154, H12160] 236,242,254 

Awards to defendants: 

[S. Rep. 5] 11 

[S16428, S16431, S16491, S16662, S16663, S17050, S17051] 63, 

74, 137, 163, 166, 194, 197 

[H. Rep. 6, 7] 214, 215 

[H12154, H12155, H12156, H12160, H12161, H12162, H12164, 

H12165, H12166] 242, 245, 247, 254, 257, 260, 266, 268, 271 

Awards to plaintiffs: 

IS. Rep. 4] 10 

[S16428, S16491, S17052] 65, 137, 200 

[H. Rep. 6, 9] 214, 217 

[H12160, H12161, H12165] 254, 257, 268 

Constitutional authority for legislation: 

[S. Rep. 5] 11 

[S16252, S17052, S17053] 21, 200, 203 

[H12160] 254 

Discretionary standards for award, generally: 

[S. Rep. 4, 5] 10, 11 

LS16251, S16258, S16259, S16390, S16428, S16430, S16431, S16432, 

S16491, S16662, S16663, S16881, S17050, S17051, S17052] 18, 

35, 38, 63, 65, 71, 74, 77, 137, 163, 166, 180, 194, 197, 200 

[H. Rep. 5, 6, 7, 9] 213, 214, 215, 217 

[H12150, H12152, H12154, H12155, H12156, H12160, H12161, 

H12162, H12163, H12165, H12166] 235, 

239, 242, 245, 247, 254, 257, 260, 263, 268, 271 
History of bill (hearings, reports, etc.) : 

[S. Rep. 2, 5] 8, 11 

[S16251, S16252, S16253, S16262, S16267, S16268, S16269, S16428, 

S16449, S16664, S16665, S17050, S17051, S17052] 18, 

21, 24, 48, 54, 56, 59, 65, 89, 169, 172, 194, 197, 200 

[H. Rep. 2, 3, 4, 6, 8, 9] 210, 211, 212, 214, 216, 217 

[H12150, H12151, H12155, H12158, H12159, H12161, H12162, 

H12163, H12164, H12166] 235, 

235, 236, 245, 251, 252, 257, 260, 266, 271 

Individual liability for fees: 

[S. Rep. 5] 11 

[H. Rep. 9] 217 

Interim fees: 

[S. Rep. 5] 11 

[H. Rep. 5] 213 

1 Congressional Record, Senate report and House Report pages are shown in brackets. 

(VII) 



VIII 

IRS amendment: Page 

[S16428, S16431, S16446, S16482, S16490, S16491, S17050] 65 

74, 85, 130, 134, 137, 194 

[H12151, H12152, H12159, H12162, H12163, H12164, H12166] 236 

239, 252, 260, 263, 266, 271 

Other fee statutes, general: 

[S. Rep. 2, 3, 4, 5] 8. 9, 10, 11 

[S16251, S16252, S16254, S16267, S16268, S16269, S16432, S16449, 

S16491, S16665, S17051, S17052] 18, 

21, 27, 54, 56, 59, 77, 89, 137, 172, 197, 200 

[H. Rep. 3, 5, 6, 8, 13] 211, 213, 214, 216, 220 

[H12150, H12151, H12152, H12154, H12155, H12158, H12160, 

H12161, H12163, H12164, H12165] 235, 

236, 239, 242, 245, 251, 254, 257, 263, 266, 268 
Prevailing party, need not gain full foimal relief: 

[S. Rep. 5] 11 

[S16258] 35 

[H. Rep. 7] 215 

Procedural posture, miscellaneous (interveners, pendent jurisdiction, etc.) : 

[S. Rep. 4] 10 

[S16258] 35 

[H. Rep. 4] 212 

[H12152, H12153, H12161] 239, 241, 257 

Public interest and non-profit lecipients: 

[H. Rep. 8] _ 216 

[H12165] . 268 

Purpose of bill, to enforce federal rights (private attorneys general) : 

[S. Rep. 2, 3, 4, 5, 6] J 8, 9, 10, 11, 12 

[S16251, S16252, S16258, S16430, S16431, S16432, S16449, S17051, 

S17052] 18, 21, 35, 71, 74, 77, 89, 197, 200 

[H. Rep. 1, 2, 3] 209, 210, 211 

[H12151, H12152, H12155, H12158, H12160, H12161, H12162, 

H12163, H12164, H12165, H12166] 236, 

239, 245, 251, 254, 257, 260, 263, 266, 267, 268, 271 
Retroactivitj r , application of statute to pending cases: 

[S16446, S17052] 85, 200 

[H. Rep. 4] 212 

[H12155, H12160, H12166, H12167] 245, 254, 271, 275 

State courts: 

[H12158] 251 

State officials' liability, notwithstanding 11th Amendment: 

[S. Rep. 5, 6] 11, 12 

[H12160] 254 

Test cases not excluded: 

[H. Rep. 7] 215 

Time and items to be compensated: 

[S. Rep. 6] 12 

[S16258, S16260, S16482] 35, 41, 130 

[H12160, H12165] 254, 268 

Title II, Civil Rights Act of 1964: 

[S. Rep. 2, 3, 4] 8, 9, 10 

[S16432] 77 

[H. Rep. 5] 213 

[H12150, H12163, H12165] 235, 263, 268 

Title VI, Civil Rights Act of 1964: 

[S16252] 21 

[H. Rep. 5, 20, 21, 22, 23] 213, 227, 228, 229, 230 

[H12153, H12159] 241, 252 

Title VII, Civil Rights Act of 1964: 

[S. Rep. 2, 3, 4] 8, 9, 10 

[S16251, S16254, S16432] 18, 27, 77 

[H. Rep. 5] 213 

[H12150, H12161, H12163, H12165] 235, 257, 263, 268 

Title IX, Emergencv Schools Aid Act: 

[S16252, S16262, S16428, S16664] 21, 48, 65, 169 

[H. Rep. 4, 5, 17, 18, 19, 20] 212, 213, 224, 225, 226, 227 

[H12152, H12153, H12159, H12161, H12164] 239, 241, 252, 257, 266 



IX 



Types of cases covered, general: P a ^ e 

[S. Rep. 4] 10 

[S16252, S16258, S16262, S16268, S16428, S16431, S16432, S16446, 

S16456, S16482, S16490, S16491. S16664, S17050, S17052] 21, 

35, 48, 56, 65, 74, 77, 85, 104, 130, 134, 137, 169, 194, 200 

[H. Rep. 4, 5, 7, 9, 16, 17, 18, 19, 20, 21, 22, 23] 212, 

213, 215, 217, 223, 224, 225, 226, 227, 228, 229, 230 
[H12151, H12152, H12153, H12154, H12159, H12160, H12161, 

H12162, H12163, H12164, H12165, H12166] 236, 

239, 241, 242, 252, 254, 257, 260, 263, 266, 268, 271 

Voting Rights Act, § 402: 

[S. Rep. 2, 4] 8, 10 

[S16254] 27 

[H. Rep. 5] 213 

[H12150, H12158, H12163] 235, 251, 263 

20 U.S.C. § 1617: 

[S. Rep. 4, 5] 10, 11 

[S16254] 27 

[H12163] 263 

42 U.S.C. § 1981: 

[S. Rep. 4] 10 

[H. Rep. 4, 15] 212, 222 

[H12159, H12161, H12163, H12165] 252, 257, 263, 268 

42 U.S.C. § 1982: 

[S. Rep. 4] 10 

[H. Rep. 4, 15] 212, 222 

[H12159, H12163] 252, 268 

42 U.S.C. § 1983, general: 

[S. Rep. 4] 10 

[S16252, S16431, S16432] 21, 74, 77 

[H. Rep. 4, 5, 7, 9, 15] 212, 213, 215, 217, 222 

[H12154, H12159, H12160, H12163, H12165] 242, 252, 254, 263, 268 

42 U.S.C. § 1983, non-racial cases: 

[S. Rep. 4] 10 

[H. Rep. 5] 213 

[H12163] 263 

42 U.S.C. § 1983, cases against governmental defendants: 

[S. Rep. 4] 10 

[S16252, S16431, S16432] 21, 74, 77 

[H. Rep. 5, 7, 9] 213, 215, 217 

[H12154, H12159, H12160, H12163, H12165] 242, 252, 254, 263, 268 

42 U.S.C. § 1983, cases to enforce constitutional rights: 

[S. Rep. 4] 10 

[H. Rep. 5] 213 

[H12159, H12163, H12165] 252, 263, 268 

42 U.S.C. § 1983, cases to enforce federal statutory rights: 

[S. Rep. 4] 10 

[S16252] 21 

IH12159, H12165] 252, 268 

42 U.S.C. § 1985: 

[H. Rep. 5, 15, 16] 213, 222, 223 

[H12159, H12161] 252, 257 

42 U.S.C. § 1986: 

LH. Rep. 5, 16, 17] 213, 223, 224 

[H12159, H12163] 252, 263 

42 U.S.C. § 1988: 

[S. Rep. 3, 6] 9, 12 

[H. Rep. 4, 10, 11, 17] 212, 218, 219, 224 



Digitized by the Internet Archive 
in 2013 



http ://arch i ve . o rg/detai Is/atto rOOu n it 



CONGRESSIONAL DEBATE SPEAKER'S INDEX 

Senate : 

Abourezk, James S. 

75, 92, 93, 94, 95, 111, 112, 113, 133, 134, 146, 147, 148, 163, 166, 168, 170, 
174, 175, 176, 178, 181, 182, 184, 186, 189, 191, 194, 198, 199, 202, 205 

Allen, James B. 

21, 24, 25, 26, 30, 32, 40, 42, 45, 46, 48, 49, 50, 53, 54, 60, 61, 62, 63, 64, 
65, 66, 67, 68, 72, 74, 76, 81, 88, 89, 91, 92, 108, 109, 110, 111, 112, 113, 
114, 116, 117, 118, 119, 120, 121, 122, 123, 125, 126, 127, 128, 129, 130, 
131, 132, 134, 139, 140, 141, 142, 143, 145, 146, 147, 148, 171, 174, 176, 
182, 191, 192, 193, 194, 195, 198, 205 

Bayh, Birch 

84, 86, 87, 88 

Brooke, Edward W. 
49 

Buckley, James L. 
133 

Bumpers, Dale 
63 

Byrd, Harry F., Jr. 
84 

Byrd, Robert C. 

17, 31, 32. 41, 43, 44, 46, 49, 50, 51, 52, 53, 54, 60, 61, 65, 72, 81, 82, 83, 
92, 93, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 121, 122, 
123, 124, 125, 126, 127, 128, 129, 130, 133, 134, 139, 140, 141, 142, 143, 
145, 147, 148, 150, 163, 168, 170, 174, 176, 181, 183, 184, 186, 189, 191, 
192, 193, 195, 198, 203 

Cranston, Alan 

65, 68, 73, 74, 113 

Durkin, John A. 
99, 205 

Fong, Hiram L. 
42 

Goldwater, Barry 

84, 85, 87, 88, 123, 125, 130, 131, 132, 133 
Gravel, Mike 

107 

Griffin, Robert P. 

17, 31, 33, 41, 44, 47, 51, 65. 72, 82, 93, 107. 110. 113, 115, 119, 121, 122, 124, 

127, 132, 133, 135, 149, 150, 163, 168, 170, 174, 176, 181, 185, 187, 190, 

192, 195, 203 
Hansen, Clifford 

125, 191 
Hart, Gary 

119, 126 
Haskell, Floyd K. 

178 

Hathaway, William D. 

73, 74, 75, 76, 
Helms, Jesse 

34, 36, 38. 39. 40. 43. 64. 75. 76. 80. 81, 82. 107, 113, 132, 147, 164. 165. 166, 

167, 169, 170, 182, 183, 184, 186, 187, 189, 194 
Javits, Jacob 

88, 147 
Kennedy. Edward M. 

21, 22, 23, 24, 25, 26, 30, 31, 82, 91, 92, 169, 170, 196, 197, 198, 200 
Long. Russell B. 

61, 62, 63, 140, 141, 142, 180, 182, 183 
Mathias. Charles McC, Jr. 

19, 38, 39, 40, 41, 42, 43, 45, 46, 68 
McClure, James A. 

72 

Morgan, Robert 
205 



(XI) 



XII 



Senate — Continued 

Muskie, Edmund S. 

21, 133, 136 
Nelson, Gay lord 

32, 72 
Pastore, John O. 

30, 194 
Scott, Hugh 

19, 83 
Scott, William L. 

143, 166, 167, 177, 178, 179, 180, 181 
Stennis, John C. 

196, 198 
Talmadge, Herman E. 

178 

Thurmond, Strom 

94, 95, 99, 106, 133, 146, 151, 160, 163, 178 
Tunney, John V. 

138, 195, 199 

House of Representatives : 
Anderson, John B. 

235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 247 
Ashbrook. John M. 

242, 243, 246, 272 
Bauman. Robert E. 

241, 242, 248, 251, 252, 261, 262, 268 
Beard, Robin L. 

244, 247 
Bolliiifr, Richard 

235, 245, 246, 247, 248 
Brown, Garrv 

244, 245 
Butler. M. Caldwell 

275 

Drinan, Robert F. 

240, 241. 242. 243, 244, 246, 251, 252, 257, 258, 260, 261, 262, 264, 265, 266, 
267, 271 
Fish, Hamilton 
264 

Holtzman, Elizabeth 
267 

Hyde. Henry J. 

243, 244 
Jordan. Barbara 

267, 268, 269 
Kastenmeier, Robert W. 

260, 261, 262 
Lott. Trent 

247 

McClory, Robert 

238. 239, 240 
Qnie. Albert H. 

240, 241, 265, 266. 267 
Railsback, Tom 

242. 258. 259. 260, 265, 266, 267 
Rousselot. John H. 

237. 238. 239 
Seiberlinjr John F. 

245, 246. 269 
White. Richard C. 

246, 257, 258 



TABLE OF CASES 



Page 

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) [Title VI case] 

[H. Rep. 5] 213 

Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240 
(1975) [Federal courts lack general power to award fees without Con- 
gressional authorization] Passim 

Aspira of New York, Inc. v. Board of Education of the City of New York, 
65 F.R.D. 541 (S.D.N. Y. 1975) [fee award after consent decree] 

[S. Rep. 5] 11 

[H. Rep. 7] 215 

Blue v. Craig, 505 F.2d 830 (4th Cir. 1974) [Example of suit under 42 
U.S.C. § 1983 alleging violation of federal statutory rather than consti- 
tutional rights] 

[H12159] 253 

Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967), cert, 
denied, 388 U.S. 911 (1967) [Title VI case] 

[H. Rep. 5] 213 

Bradley v. School Board of the City of Richmond, Virginia, 416 U.S. 697 
(1974) [New fee authorization statutes apply to pending cases; also 
supporting award of interim fees] 

[S. Rep. 5] 11 

[H. Rep. 4, 8] 112, 216 

[S17052] 202 

[H12160] 256 

Brown v. Dallas, 331 F. Supp. 1033 (N.D. Texas 1971) [Example of suit 
under 42 U.S.C. § 1982] 

[H12163] 265 

Brown v. Board of Education, 347 U.S. 483 (1954) [Example of suit under 
42 U.S.C. § 1983] 

[H. Rep. 4, 7] 212, 215 

[H12159] 253 

Brown v. City of Meridian, Meridian, Mississippi, 356 F.2d 602 (5th Cir. 
1966) [Example of the breadth of remedies available in civil rights cases; 
42 U.S.C. § 1988] 

[S. Rep. 3] 9 

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972), 
cert, denied, 409 U.S. 982 (1972) [Fee award without granting of formal 
relief] 

[H. Rep. 7] 215 

Cannon v. University of Chicago, F.2d (7th Cir. 19) [Case holding there 
was no private right to sue under Title VI of the Civil Rights Act of 1972] 

[H12161] 259 

Carrion v. I eshiva University, 535 F.2d 722 (2d Cir. 1976) [Standards for 
award of fees to prevailing defendant] 

[H. Rep. 7] 215 

[H12160] 255 

Class v. Norton, 505 F.2d 123 (2d Cir. 1974) [Description of standard for 
assessing fees against State officials in their individual capacities] 

[S. Rep. 5] 11 

Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir. 1941) 
[Fees to defendant upon voluntary dismissal of a groundless complaint] 

[H. Rep. 7-8] 215-16 

Davis v. County of Los Angeles, 8 E.P.D. 1 9444 (CD. Cal. 1974) [Correct 
application of computation standards; fee award of $60 per hour to lead 
counsel, and $55 per hour and $35 per hour to associate counsel, plus a 
"bonus" award for the excellence of results, expert witness fees, para- 
legal expenses and out-of-pocket expenses] 

[S. Rep. 6] 12 

(xin) 



XIV 



Page 

Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) [Individual assessment of "bad 
faith" fees against official defendant] 

[S. Rep. 5] 11 

Elrod v. Burns, 49 L.Ed. 2d 547 (June 28, 1976) [Example of a nonracial case 
under 42 U.S.C. § 1983] 

[II. Rep. 5] 213 

Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Dir. 1974) [Standards 
of computation listed] 

[II. Rep. 8] 216 

Evers v. Dwyer, 358 U.S. 202 (1958) 

[II. Rep. 7] 215 

Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) [Fees to nonprofit 
group] 

[H. Rep. 8] 216 

Fairmont Creamery Co. v. Minnesota, 275 U.S. 168 (1927) [States liable for 
costs in federal court, despite Eleventh Amendment] 

[S. Rep. 5] 11 

Fitzpalrick v. Bitzer, 49 L.Ed. 2d 614 (June 28, 1976) [Eleventh Amend- 
ment no bar to Congressional authorization of fees against State of- 
ficials] 

[II. Rop. 7] 215 

[1112160] 255 

Fleuh nann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967) 
[Fees not generally available without statutory authorization] 

[SI 6432] 77 

Gate* v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972) aff'd 501 F.2d 1291 
(5th Cir. 1974) [Prison suit for which fees would be authorized under 
Act: suit under, inter alia, 42 U.S.C. §§ 1981, 1983 and 1985] 

[II12I63J 265 

Griffin v. Breckenridge, 403 U.S. 88 (1971) [Example of suit under § 1985] 

[H. Rep. 5] 213 

Hagans v. Lavine, 415 U.S. 528 (1974) [Case describing the test for awarding 
fees under a nonfee ground related to a claim under which fees would be 
authorized] 

[11. Rep. 4] 212 

Hall v. Cole, 412 U.S. 1 (1973) [Common benefit case]: 

[S. Rep. 3] 9 

Hammond v. Housing Authority & Urban Renewal Agency of Lane County, 
Oregon, 328 F. Supp. 586 (D. Oregon 1971) [Non-racial equal protection 
case under 42 U.S.C. § 1983] 

[H12163] 265 

Harper v. Virginia State Board of Elections, 383 U.S. 773 (1966) [Non- 
racial suit under 42 U.S.C. § 1983] 

[II. Rep. 5] 213 

Hills v. Gautreaux, 47 L.Ed.2d 792 (1976) [Title VI case] 

[II. Rep. 5, 7] 213, 215 

Hutchinson v. William Barry, Inc., 50 F. Supp. 292 (D. Mass. 1943) [Case 
describing double standard for statutory fee awards to prevailing plain- 
tiffs as opposed to prevailing defendants] 

[S. Rep. 5] 11 

Incarcerated Men of Allen County v. Fair, 507 F. 2d 281 (6th Cir. 1974) 
[Fees awarded to federally funded attorneys; award after consent decree] 

[IT. Rep. 7, 8] 215, 216 

Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974) 
[Twelve factors for computing amount of fees] 

[S. Rep. 6] 12 

[H. Rep. 8] 216 

[H12160; S16491] 255, 138 

Johnson v. Railway Express Agency, 421 U.S. 454 (1975) [Case under 42 
U.S.C. § 1981] 

[II. Rep. 4] 212 

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) [Case under 42 U.S.C. 
§ 1982] 

[H. Rep. 4] 212 



XV 

Knight v. Auciello, 453 F. 2d 852 (1st Cir. 1972) [Suit under 42 U.S.C. 

§ 1982] Page 

[S17051-52] 200 

Kopet v. Esquire Realty Co., 523 F. 2d 1005 (2d Cir. 1975) [Fees may be 
awarded to party who docs not obtain formal relief] 

[S. Rep. 5] 11 

Lau v. Nichols, 414 U.S. 563 (1974) [State officials who violate a federal 
statute (e.g., Title VI) thereby violate 42 U.S.C. § 1983] 

[H. Rep. 5] 213 

[S16252] 22 

Laufman v. Oakley Building & Loan Co., 408 F. Supp. 489 [Title VI case] 

[H. Rep. 5] 213 

Lea v. Cone Mills Corporation, 438 F. 2d 86 (4th Cir. 1971) [Fees available 
in test cases] 

[H. Rep. 7] 215 

Lee v. Southern Home Sites, 429 F. 2d 290 (5th Cir. 1970) [Suit under 42 
U.S.C. § 1982] 

[H12163] 265 

Left on v. City cf Hattiesburg, Mississippi, 333 F. 2d 280 (5th Cir. 1964) 
[Example of the breadth of remedies available in civil rights cases; 42 
U.S.C. § 1988] 

[S. Rep. 3] 9 

McDonald v. Sante Fe Trail Transportation Co., 49 L.Ed. 2d [Case holding 
42 U.S.C. § 1981 available to white as well as black plaintiffs] 

[H. Rep. 4] 212 

Mills v. Electric Auto-Lite Co., 396 U.S.C. 375 (1970) [Case supporting the 
award of interim fees] 

[S. Rep. 5] 11 

[H. Rep. 8] 216 

Monroe v. Pape, 365 U.S. 167 (1961) [Nonracial case under 42 U.S.C. 
§ 1983] 

[H. Rep. 5] 213 

Morales v. Haines, 486 F. 2d 880 (7th Cir. 1973) [Case holding plaintiff 
entitled to determination on claim under which fees can be awarded if 
case decided on claim under which fees cannot] 

[H. Rep. 4] 212 

Morrow v. Crisler, 479 F. 2d 960 (5th Cir. 1973), 491 F. 2d 1053 (5th Cir. 
1974) (on rehearing en banc) [Employment suit under 42 U.S.C. § 1983] 

[H12163] 265 

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) [First 
Supreme Court enunciation of the "private attorney general" theory for 
statutory fee awards] 

[S. Rep. 3] 9 

[H. Rep. 2, 6, 9] 210, 214, 217 

[H12165, S16491] 270, 139 

Northcross v. Memphis Board of Education, 412 U.S. 427 (1973) (per curiam) 
[Describes standards for awarding fees to prevailing plaintiffs] 

[H. Rep. 6, 9] 214, 217 

O'Connor v. Donaldson, 422 U.S. 563 (1975) [Nonracial suit under 42 U.S.C. 
§ 1983]. 

[H. Rep. 5, 7] 213, 215 

Parkham v. Southwestern Bell Telephone Co., 433 F. 2d 421 (8th Cir. 1970) 
[Fees to plaintiff who gained no formal relief] 

[S. Rep. 5] 11 

[H. Rep. 7, 8] 215, 216 

Parker v. Matthews, 411 F. Supp. 1049 (D.D.C. 1976) [Fee award after 
consent decree] 

[H. Rep. 7] 215 

Pierson v. Ray. 386 U.S. 547 (1967) 

[H. Rep. 9] 217 

Reed v. Arlington Hotel Co., Inc., 476 F. 2d 721 (8th Cir. 1973) [Plaintiff 
"prevails" by winning class action claims, even where he loses individual 
claims] 

[H. Rep. 8] 216 



XVI 



Page 

Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Ore. 1969) [Fee 
award without formal relief] 

[S. Rep. 5] 11 

Richardson v. Hotel Corporation of America, 332 F. Supp., 519 (E.D. La. 
1971), aff'd mem., 468 F. 2d 951 (5th Cir. 1972) [Rigid standard for fee 
award to prevailing defendant] 

[S. Rep. 5] 11 

[S16280] 64 

[H. Rep. 7] 215 

Scheuer v. Rhodes, 416 U.S. 232 (1974) 

[H. Rep. 9] 217 

Skelley v. Kraemer, 334 U.S. 1 (1948) [Instance where the "private attorney 
general" is a defendant] 

[S. Rep. 4] 10 

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972), aff'd mem., 409 U.S. 
942 (1972) [Case under 42 U.S.C. § 1983] 

[S. Rep. 4] 10 

Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973) [Case under 
42 U.S.C. § 1983] 

[S. Rep. 4] 10 

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974) [Correct appli- 
cation of fee computation standards; $ per hour, plus a "bonus" of $; 
supports payment of fees for all time reasonably spent] 

[S. Rep. 6] 12 

Swann v. Charlotte- MecMenberg Board of Education, 66 F.R.D. 483 
(W.D.N.C. 1975) [Correct application of fee computation standards; 
c. $6.00 per hour] 

[S. Rep. 6] 12 

Symkowski v. Miller, 294 F. Supp. 1214 (E.D. Wis. 1969) [Suit under 42 
U.S.C. § 1986] 

[H12163] 265 

Thomas v. Honeybrook Mines, Inc., 428 F. 2d 981 (3d Cir. 1970) [Intervenor 
eligible for fees upon proper showing] 

[S. Rep. 5] 11 

Tillman v. Wheaton- Haven Recreation Ass'n, Inc., 410 U.S., 431 (1973) 
[Case under 42 U.S.C. § 1981] 

[H. Rep. 4] 212 

Torres v. Sachs, 69 F.R.D. 343 (S.D.N. Y. 1975), aff'd, F. 2d (2d Cir. 1976) 
[Fees to plaintiffs represented by a pro bono lawfirm] 

[H. Rep. 8] 216 

Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972) 

[H. Rep. 2] 210 

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) [Case describing the 
"substantiality" test under which fees may be awarded although case 
decided on nonfee ground] 

[H. Rep. 4] 212 

United States Steel Corp. v. United States, 385 F. Supp. 346 (W.D. Pa. 1974), 
aff'd, 519 F. 2d 359 (3d Cir. 1975) [Rigid standards for award to pre- 
vailing defendant] 

[S16280, S16491] 64, 139 

[S. Rep. 5] 11 

[H. Rep. 6, 7, 8] 214, 215, 216 

Wood v. Strickland, 420 U.S. 308 (1975) 

[H. Rep. 9] 217 

Wright v. Stone Container Corp., 524 F. 2d 1058 (8th Cir. 1975) [Rigid stand- 
ards for award to prevailing defendant] 

[H. Rep. 7] 215 



(XVII) 



PUBLIC LAW 94-559— OCT. 19, 1976 



90 STAT. 2641 



Public Law 94-559 
94th Congress 



An Act 



The Civil Rights Attorney's Fees Awards Act of 1976. 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may 
be cited as "The Civil Rights Attorney's Fees Awards Act of 1976". 

Sec. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is 
amended by adding the following: "In any action or proceeding to 
enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the 
Revised Statutes, title IX of Public Law 92-818, or in any civil action 
or proceeding, by or on behalf of the United States of America, to 
enforce, or charging a violation of, a provision of the United States 
Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 
the court, in its discretion, may allow the prevailing party, other than 
the United States, a reasonable attorney's fee as part of the costs.". 



Oct. 19, 1976 
[S. 2278] 

The Civil 
Rights Attorney's 
Fees Awards 
Act of 1976. 
42 USC 1981 
note. 

42 USC 1981- 
1983, 1985, 
1986. 

20 USC 1681. 
26 USC 1 et seq. 
42 USC 2000d. 



Approved October 19, 1976. 



LEGISLATIVE HISTORY : 

HOUSE REPORT No. 94-1558 accompanying H.R. 15460 (Comm. on the Judiciary). 
SENATE REPORT No. 94-1011 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 122 (1976): 

Sept. 21-24, 27-29, considered and passed Senate. 

Oct. 1, considered and passed House. 



79-586 O - 77 - 2 



INTRODUCTION OF S. 2278 
AND 

JUDICIARY COMMITTEE REPORT 



[121 Cong. Rec. S 14975 (daily ed., Aug. 1, 1975)] 

By Mr. Tunney : 
S. 2278. A bill entitled "The Civil Rights Attorneys' Fees Awards 
Act of 1975." Referred to the Committee on the Judiciary. 

CIVIL RIGHTS ATTORNEYS' FEES AWARDS ACT 

Mr. Tunney. Mr. President, today I am introducing a bill which 
would allow a court, in its discretion, to award attorney's fees to a pre- 
vailing party in suits brought to enforce the civil rights acts which 
Congress has passed since 1866. 

This bill is identical to a provision in S. 1279, the Senate version of 
the Voting Rights Act extension, which was reported favorably by the 
Subcommittee on Constitutional Rights by a vote of 8 to 2, and by the 
full Judiciary Committee by a vote of 10 to 4. As you know, the time 
pressure created by the August 6th expiration date of the Voting 
Rights Act prevented the Senate from considering its own version of 
the extension. Even though I felt strongly about this attorney's fees 
provision that was in the Senate version, as floor manager I urged 
passage of the House version without substantial modification because 
I felt that the need to get a Voting Rights Act passed before its expira- 
tion was an overriding consideration. As a result, this provision of 
S. 1279 was never taken up by the full Senate. I introduce it today as 
a separate bill in the hope that it can receive the swift consideration 
of this body. 

The purpose and effect of this bill is simple — it is to allow the courts 
to provide the traditional remedy of reasonable counsel fee awards to 
private citizens who must go to court to vindicate their rights under 
our civil rights statutes. The Supreme Court's recent Alyeska decision 
has required specific statutory authorization if Federal courts are to 
continue previous policies of awarding fees under all Federal civil 
rights statutes. This bill simply applies the type of "fee-shifting" pro- 
vision already contained in titles II and VII of the 1964 Civil Rights 
Act to the other civil rights statutes which do not already specifically 
authorize fee awards. It therefore restores to the Federal courts au- 
thority which they had exercised for years until a little over 2 months 
ago. 

In the typical case that arises under these statutes the citizen whose 
rights have been violated has little or no money with which to hire a 
lawyer, and there is often no damage claim from which an attorney 
could draw his fee. If private citizens are to be able to assert their 
rights under these laws — if those who violate these most basic human 
freedoms are not to proceed with impunity — then citizens must have 
the opportunity to recover what it costs them to vindicate these rights 
in court. 

Congress recognized this need when it made specific provision for 
such fee-shifting in titles II and VII of the Civil Rights Act of 1964, 



(3) 



4 



which apply to discrimination in public accommodations and employ- 
ment. This sort of provision is equally appropriate in other civil rights 
statutes, because there, as in employment and public accommodations 
cases. ( Congress depends heavily on private enforcement. 

Mr. President, the reason why this legislation specifically authoriz- 
ing fee awards under all our civil rights laws was not introduced years 
ago is simply that, until very recently, it was widely believed and held 
that the courts already had the power to award counsel fees in all civil 
rights cases as part of their inherent equity power. Before May 12 of 
this year, when the Supreme Court issued its opinion in Alyeska Pipe- 
line Service Co. against Wilderness Society, many lower Federal courts 
had followed the congressional fee-shifting policies of titles II and 
VII of the 1964 act and had awarded fees to prevailing plaintiffs in 
suits brought under these other civil rights laws without requiring 
specific statutory authorization. 

However, in the Alyeska case the Court held that Federal courts did 
not have the power to grant fees to prevailing parties without such 
specific statutory authorization. 

I should emphasize here that the Alyeska court did not disapprove 
of these attorney's fee awards. On the contrary, Justice White, speak- 
ing for the majority, noted that it was — 

apparent from our national experience that the encouragement of private action 
to implement public policy has been viewed as desirable in a variety of circum- 
stances. 

The Court's holding merely reflected its belief that it is powerless 
to proceed with such beneficial fee awards until Congress "gives the 
word" — in a bill such as this one. 

However, even though the Alyeska decision turned on a question of 
judicial power and not on the merits of fee awards — and even though 
Alyeska was an environmental case and not a civil rights case — its 
effect was to create an unexpected and anomalous gap in our civil 
rights laws whereby awards of fees are suddenly unavailable in the 
most fundamental civil rights cases. For instance, fees are now author- 
ized in an employment discrimination suit under title VII of the 1964 
Civil Eights Act, but not in the same suit brought under 42 U.S.C. 
1981, which protects similar rights but involves fewer technical pre- 
requisites to the filing of an action. Fees are allowed in a suit under 
title II of the 1964 act challenging discrimination in a private restau- 
rant, but not in suits under 42 U.S.C. 1983 redressing violations of the 
Federal Constitution or laws by officials sworn to uphold the laws. 

This bill would remedy these gaps in the statutory language by pro- 
viding the specific authorization required by the Court in Alyeska. 
It would thus return to Federal judges the beneficial power to award 
counsel fees to the victims of violations of our most basic civil rights 
statutes. 

Of course, since citizens would only recover fees under this bill if 
they were successful in their suits, this act would do nothing to en- 
courage frivolous or bad faith litigation. In fact, by allowing assess- 
ment of fees against a "bad faith" plaintiff, it would have exactly the 
opposite effect. 

Mr. President, if our civil rights laws are not to become mere hollow 
pronouncements, which the average citizen cannot enforce, we must 



5 



maintain the traditionally effective remedy of fee-shifting in these 
cases. This bill, then, contains no startling new remedy — it only meets 
the technical requirements that the Supreme Court has laid down if 
the Federal courts are to continue the practice of awarding attorney's 
fees which had been going on for years prior to the Court's May de- 
cision. It does not change the statutory provisions regarding the pro- 
tection of civil rights except as it provides the fee awards which are 
necessary if citizens are to be able to effectively secure compliance with 
these existing statutes. This provision has already received the favor- 
able recommendation of the full Judiciary Committee, and I urge its 
speedy passage by the full Senate. 

Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record. 

There being no objection, the bill was ordered to be printed in the 
Record, as follows : 

S. 2278 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, Revised Statutes Section 722 (42 U.S.C. Sec. 
1988) is amended by adding the following: "In any action or proceeding to 
enforce a provision of section 1977, 1978, 1979, 1980 and 1981 of the Revised 
Statutes, or Title VI of the Civil Rights Act of 1964, the court, in its discretion, 
may allow the prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs". 



94th Congress ) SENATE 
2d Session \ 



CIVIL RIGHTS ATTORNEYS' FEES AWARDS ACT 



June 29 (legislative day, June 18), 1976. — Ordered to be printed 



Mr. Tunney, from the Committee on the Judiciary, 
submitted the following 

REPORT 

[To accompany S. 2278] 

The Committee on the Judiciary, to which was referred the bill 
(S. 2278) to amend Revised Statutes section 722 (42 U.S.C. § 1988) 
to allow a court, in its discretion, to award attorneys' fees to a pre- 
vailing party in suits brought to enforce certain civil rights acts, having 
considered the same, reports favorably thereon and recommends that 
the bill do pass. 

The text of S. 2278 is as follows: 

S. 2278 

Revised Statutes section 722 (42 U.S.C. Sec. 1988) is 
amended by adding the following: "In any action or pro- 
ceeding to enforce a provision of sections 1977, 1978, 1979, 
1980 and 1981 of the Revised Statutes, or Title VI of the Civil 
Rights Act of 1964, the court, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs.". 

Purpose 

This amendment to the Civil Rights Act of 1866, Revised Statutes 
Section 722, gives the Federal courts discretion to award attorneys' 
fees to prevailing parties in suits brought to enforce the civil rights 
acts which Congress has passed since 1866. The [purpose of this amend- 
ment is to remedy anomalous gaps in our civil rights laws created by 
the United States Supreme Court's recent decision in Alyeska Pipeline 
Service Co. v. Wilderness Society, 421 U.S. 240 (1975), and to achieve 
consistency in our civil rights laws. 

57-010 



Calendar No. 955 

j Report 
\ No. 94-1011 



(7) 



8 



2 

History of the Legislation 

The bill grows out of six days of hearings on legal fees held before 
the Subcommittee on the Representation of Citizen Interests of this 
Committee in 1973. There were more than thirty witnesses, including 
Federal and State public officials, scholars, practicing attorneys from 
many areas of expertise, and private citizens. Those who did not 
appear were given the opportunity to submit material for the record, 
and many did so, including the representatives of the American Bar 
Association and the Bar Associations of 22 States and the District 
of Columbia. The hearings, when published, included not only the 
testimony and exhibits, but numerous statutory provisions, proposed 
legislation, case reports and scholarly articles. 

In 1975, the provisions of S. 2278 were incorporated in a proposed 
amendment to S. 1279, extending the Voting Rights Act of 1965. 

The Subcommittee on Constitutional Rights specifically approved 
the amendment on June 11, 1975, by a vote of 8-2, and the full 
Committee favorably reported it on July 18, 1975, as part of S. 1279. 
Because of time pressure to pass the Voting Rights Amendments, the 
Senate took action on the House-passed version of the legislation. 
S. 1279 was not taken up on the Senate floor; hence, the attorneys' 
fees amendment was never considered. 

On July 31, 1975, Senator Tunney introduced S. 2278, which is 
identical to the amendment to S. 1279 which was reported favorably 
by this Committee last summer. 

Shortly thereafter, similar legislation was introduced in the House 
of Representatives, including H.R. 9552, which is identical to S. 2278 
except for one minor technical difference. The Subcommittee on 
Courts, Civil Liberties and the Administration of Justice of the 
House Judiciary Committee has conducted three days of hearings at 
which the witnesses have generally confirmed the record presented to 
this Committee in 1973. H.R. 9552, the counterpart of S. 2278, has 
received widespread support by the witnesses appearing before the 
House Subcommittee. 

Statement 

The purpose and effect of S. 2278 are simple — it is designed to allow 
courts to provide the familiar remedy of reasonable counsel fees to 

Erevailing parties in suits to enforce the civil rights acts which Congress 
as passed since 1866. S. 2278 follows the language of Titles II and VII 
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e- 
5(k), and section 402 of the Voting Rights Act Amendments of 1975, 
42 U.S.C. § 19732(e). All of these civil rights laws depend heavily upon 
private enforcement, and fee awards have proved an essential remedy 
if private citizens are to have a meaningful opportunity to vindicate 
the important Congressional policies which these laws contain. 

In many cases arising under our civil rights laws, the citizen who 
must sue to enforce the law has little or no money with which to hire a 
lawyer. If private citizens are to be able to assert their civil rights, and 
if those who violate the Nation's fundamental laws are not to proceed 
with impunity, then citizens must have the opportunity to recover 
what it costs them to vindicate these rights in court. 



S.R. 1011 



9 



3 

Congress recognized this need when it made specific provision for 
such fee shifting in Titles II and VII of the Civil Rights Act of 1964: 

When a plaintiff brings an action under [Title II] he cannot 
recover damages. If he obtains an injunction, he does so not 
for himself alone but also as a "private attorney general/ ' 
vindicating a policy that Congress considered of the highest 
priority. If successful plaintiffs were routinely forced to bear 
their own attorneys' fees, few aggrieved parties would be in a 
position to advance the public interest by invoking the 
mjunctive powers of the Federal courts. Congress therefore 
enacted the provision for counsel fees — * * * to encourage 
individuals injured by racial discrimination to seek judicial 
relief under Title II. Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400, 402 (1968). 

The idea of the "private attorney general" is not a new one, nor 
are attorneys' fees a new remedy. Congress has commonly authorized 
attorneys' fees in laws under which "private attorneys general" play a 
significant role in enforcing our policies. We have, since 1870, author- 
ized fee shifting under more than 50 laws, including, among others, the 
Securities Exchange Act of 1934, 15 U.S.C. §§ 78i(c) and 78r(a), the 
Servicemen's Readjustment Act of 1958, 38 U.S.C. § 1822(b), the 
Communications Act of 1934, 42 U.S.C. § 206, and the Organized 
Crime Control Act of 1970, 18 U.S.C. § 1964(c). In cases under these 
laws, fees are an integral part of the remedy necessary to achieve 
compliance with our statutory policies. As former Justice Tom Clark 
found, in a union democracy suit under the Labor-Management 
Reporting and Disclosure Act (Landrum- Griffin), 

Not to award counsel fees in cases such as this would be 
tantamount to repealing the Act itself by frustrating its basic 
purpose. * * * Without counsel fees the grant of Federal 
jurisdiction is but an empty gesture * * *. Hall v. Cole, 412 
U.S. 1 (1973), quoting 462 F. 2d 777, 780-81 (2d Cir. 1972). 

The remedy of attorneys' fees has always been recognized as par- 
ticularly appropriate in the civil rights area, and civil rights and 
attorneys' fees have always been closely interwoven. In the civil rights 
area, Congress has instructed the courts to use the broadest and most 
effective remedies available to achieve the goals of our civil rights 
laws. 1 The very first attorneys' fee statute was a civil rights law, the 
Enforcement Act of 1870, 16 Stat. 140, which provided for cttorneys' 
fees in three separate provisions protecting voting rights. 2 

Modern civil rights legislation reflects a heavy reliance on attorneys' 
fees as well. In 1964, seeking to assure full compliance with the Civil 
Rights Act of that year, we authorized fee shifting for private suits 
establishing violations of the public accommodations and equal 
employment provisions. 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k). 
Since 1964, every major civil rights law passed by the Congress has 
included, or has been amended to include, one or more fee provisions. 

1 For example, the Civil Rights Act of 1866 directed Federal courtsfto "use that combination of Federal law, 
common law and State law as will be best adapted to the object of the civil rights laws." Brown v. City of 
Meridian, Mississippi, 356 F. 2d 602, 605 (5th Cir. 1966). See 42 U.S.C. § 1988; Lefton v. City of HaUiesburg, 
Mississippi, 333 F. 2d 280 (5th Cir. 1964). 

3 The causes of action established by these provisions were eliminated in 1894. 28 Stat. 36. 



S.R. 1011 



10 



4 

E.g., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3612(c); 
the Emergency School Aid Act of 1972, 20 U.S.C. § 1617; the Equal 
Employment Amendments of 1972, 42 U.S.C. § 2000e-16(b); and the 
Voting Rights Act Extension of 1975, 42 U.S.C. § 19732(e). 

These fee shifting provisions have been successful in enabling 
vigorous enforcement of modern civil rights legislation, while at the 
same time limiting the growth of the enforcement bureaucracy. Before 
May 12, 1975, when the Supreme Court handed down its decision in 
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), 
many lower Federal courts throughout the Nation had drawn the obvi- 
ous analogy between the Reconstruction Civil Rights Acts and these 
modern civil rights acts, and, following Congressional recognition in 
the newer statutes of the "private attorney general" concept, were 
exercising their traditional equity powers to award attorneys' fees 
under early civil rights laws as well. 3 

These -pre-Alyeska decisions remedied a gap in the specific statutory 
provisions and restored an important historic remedy for civil rights 
violations. However, in Alyeska, the United States Supreme Court, 
while referring to the desirability of fees in a variety of circumstances, 
ruled that only Congress, and not the courts, could specify which laws 
were important enough to merit fee shifting under the "private 
attorney general" theory. The Court expressed the view, in dictum, 
that the Reconstruction Acts did not contain the necessary congres- 
sional authorization. This decision and dictum created anomalous gaps 
in our civil rights laws whereby awards of fees are, according to Alyeska, 
suddenly unavailable in the most fundamental civil rights cases. For 
instance, fees are now authorized in an employment discrimination 
suit under Title VII of the 1964 Civil Rights Act, but not in the same 
suit brought under 42 U.S.C. § 1981, which protects similar rights but 
involves fewer technical prerequisites to the filing of an action. Fees are 
allowed in a housing discrimination suit brought under Title VIII of the 
Civil Rights Act of 1968, but not in the same suit brought under 42 
U.S.C. § 1982, a Reconstruction Act protecting the same rights. Like- 
wise, fees are allowed in a suit under Title II of the 1964 Civil Rights 
Act challenging discrimination in a private restaurant, but not in suits 
under 42 U.S.C. §1983 redressing violations of the Federal Constitu- 
tion or laws by officials sworn to uphold the laws. 

This bill, S. 2278, is an appropriate response to the Alyeska decision. 
It is limited to cases arising under our civil rights laws, a category 
of cases in which attorneys fees have been traditionally regarded as 
appropriate. It remedies gaps in the language of these civil rights 
laws by providing the specific authorization required by the Court in 
Alyeska, and makes our civil rights laws consistent. 

It is intended that the standards for awarding fees be generally the 
same as under the fee provisions of the 1964 Civil Rights Act. A party 
seeking to enforce the rights protected by the statutes covered by 
S. 2278, if successful, "should ordinarily recover an attorney's fee 
unless special circumstances would render such an award unjust." 
Nevjman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). 4 

» These civil rights cases are too numerous to cite here. See, e.g., Sirns v. Amos 340 F. Supp. 691 (M.D. 
Ala. 1972), aff'd. 409 U.S. 942 (1972); Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal. 1973); and cases 
cited in Alyeska Pipeline, supra, at n. 46. Many of the relevant cases are collected in "Hearings on the Effect 
of Legal Fees on the Adequacy of Representation Before the Subcom. on Representation of Citizen Interests 
of the Senate Coram, on the Judiciary," 93d Cong., 1st sess., pt. Ill, at pp. 888-1024, and 1C60-62. 

4 In the lareo majority of cases the party or parties seeking to enforce such rights will be the plaintiffs 
and/or plaintiff-intervenors. However, in the procedural posture of some cases, the parties seeking to enforce 
such rights may be the defendants and/or defendant-intervenors. See, e.g., Shelley v. Kraemer, 334 U.S. 
1 (1948). 

S.R. 1011 



11 



5 

Such "private attorneys general" should not be deterred from bringing 
good faith actions to vindicate the fundamental rights here involved 
by the prospect of having to pay their opponent's counsel fees should 
they lose. Richardson v. Hotel Corporation of America, 332 F. Supp. 
519 (E.D. La. 1971), aff'd, 468 F. 2d 951 (5th Cir. 1972). (A fee award 
to a defendant's employer, was held unjustified where a claim of racial 
discrimination, though meritless, was made in good faith.) Such a 
party, if unsuccessful, could be assessed his opponent's fee only where 
it is shown that his suit was clearly frivolous, vexatious, or brought for 
harassment purposes. United States Steel Corp. v. United States, 385 
F. Supp. 346 (W.D. Pa. 1974), aff'd, 9 E.P.D. t 10,225 (3d Cir. 1975). 
This bill thus deters frivolous suits by authorizing an award of 
attorneys' fees against a party shown to have litigated in "bad faith" 
under the guise of attempting to enforce the Federal rights created 
by the statutes listed in S. 2278. Similar standards have been followed 
not only in the Civil Rights Act of 1964, but in other statutes providing 
for attorneys' fees. E.g., the Water Pollution Control Act, 1972 U.S. 
Code Cong. & Adm. News 3747; the Marine Protection Act, Id. at 
4249-50; and the Clean Air Act, Senate Report No. 91-1196, 91st 
Cong., 2d Sess., p. 483 (1970). See also Hutchinson v. William Barry, 
Inc., 50 F. Supp. 292, 298 (D. Mass. 1943) (Fair Labor Standards 
Act). 

In appropriate circumstances, counsel fees under S. 2278 may be 
awarded pendente lite. See Bradley v. School Board of the City of 
Richmond, 416 U.S. 696 (1974). Such awards are especially appropriate 
where a party has prevailed on an important matter in the course of 
litigation, even when he ultimately does not prevail on all issues. 
See Bradley, supra; Mills v. Electric Auto-Lite Co., 396 U.S. 375 
(1970). Moreover, for purposes of the award of counsel fees, parties 
may be considered to have prevailed when they vindicate rights 
through a consent judgment or without formally obtaining relief. 
Kopet v. Esquire Realty Co., 523 F. 2d 1005 (2d Cir. 1975), and cases 
cited therein; Parham v. Southwestern Bell Telephone Co., 433 F. 2d 
421 (8th Cir. 1970); Richards v. Griffith Rubber Mills, 300 F. Supp. 
338 (D. Ore. 1969); Thomas v. Honeybrook Mines, Inc., 428 F. 2d 
981 (3d Cir. 1970); Aspira of New York, Inc. v. Board of Education 
of the City of New York, 65 F.R.D. 541 (S.D.N. Y. 1975). 

In several hearings held over a period of years, the Committee has 
found that fee awards are essential if the Federal statutes to which 
S. 2278 applies are to be fully enforced. 5 We find that the effects of 
such fee awards are ancillary and incident to securing compliance 
with these laws, and that fee awards are an integral part of the 
remedies necessary to obtain such compliance. Fee awards are there- 
fore provided in cases covered by S. 2278 in accordance with Congress' 
powers under, inter alia, the Fourteenth Amendment, Section 5. As 
with cases brought under 20 U.S.C. § 1617, the Emergency School 
Aid Act of 1972, defendants in these cases are often State or local 
bodies or State or local officials. In such cases it is intended that 
the attorneys' fees, like other items of costs, 6 will be collected either 
directly from the official, in his official capacity, 7 from funds of his 
agency or under his control, or from the State or local government 
(whether or not the agency or government is a named party). 

s See, e.g., "Hearings on the Effect of Legal Fees," supra. 
9 Fairmont Creamery Co. v. Minnesota, 21b U.S. 168 (1927). 

7 Proof that an official had acted in bad faith could also render him liable for fees in his individual capacity, 
under the traditional bad faith standard recognized by the Supreme Court in Alyetka. See Class v. Norton, 
605 F. 2d 123 (2d Cir. 1974); Doe v. Poelker, 515 F. 2d 541 (8th Cir. 1975). 

SR. 1011 



12 



6 

It is intended that the amount of fees awarded under S. 2278 be 
governed by the same standards which prevail in other types of equally 
complex Federal litigation, such as antitrust cases and not be reduced 
because the rights involved may be nonpecuniary in nature. The 
appropriate standards, see Johnson v. Georgia Highway Express, 
488 F. 2d 714 (5th Cir. 1974), are correctly applied in such cases as 
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. 
County of Los Angeles, 8 E.P.D. « 9444 (CD. Cal. 1974) ; and Swann v. 
Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. 
1975). These cases have resulted in fees which are adequate to attract 
competent counsel, but which do not produce windfalls to attorneys. 
In computing the fee, counsel for prevailing parties should be paid, as 
is traditional with attorneys compensated by a fee-paying client, "for 
all time reasonably expended on a matter." Davis, supra; Stanford 
Daily, supra, at 684. 

This bill creates no startling new remedy — it only meets the 
technical requirements that the Supreme Court has laid down if the 
Federal courts are to continue the practice of awarding attorneys' 
fees which had been going on for years prior to the Court's May 
deoision. It does not change the statutory provisions regarding the 
protection of civil rights except as it provides the fee awards which 
are necessary if citizens are to be able to effectively secure compli- 
ance with these existing statutes. There are very few provisions in our 
Federal laws which are self-executing. Enforcement of the laws depends 
on governmental action and, in some cases, on private action through 
the courts. If the cost of private enforcement actions becomes too 
great, there will be no private enforcement. If our civil rights laws 
are not to become mere hollow pronouncements which the average 
citizen cannot enforce, we must maintain the traditionally effective 
remedy of fee shifting in these cases. 

Changes in Existing Law Made by the Bill Are Italicized 

revised statutes § 722, 42 u.s.c. § 1988 

"The jurisdiction in civil and criminal matters conferred on the 
district courts by the provisions of this chapter and Title 18, for the 
protection of all persons in the United States in their civil rights, and 
for their vindication, shall be exercised and enforced in conformity 
with the laws of the United States, so far as such laws are suitable 
to carry the same into effect; but in all cases where they are not 
adapted to the object, or are deficient in the provisions necessary to 
furnish suitable remedies and punish offenses against law, the common 
law, as modified and changed by the constitution and statutes of the 
State wherein the court having jurisdiction of such civil or criminal 
cause is held, so far as the same is not inconsistent with the Consti- 
tution and laws of the United States, shall be extended to and govern 
the said courts in the trial and disposition of the cause, and, if it is 
of a criminal nature, in the infliction of punishment on the party found 
guilty." In any action or proceeding to enforce a provision of sections 
1977, 1978, 1979, 1980 and 1981 of the Revised Statutes, or Title VI of the 
Civil Rights Act of 1964, the court, in its discretion, may allow the pre- 
vailing party, other than the United States, a reasonable attorney's fee 
as part of the costs. 

s.r. ion 



13 



7 

Cost of Legislation 

The Congressional Budget Office, in a letter dated March 1, 1976, 
has advised the Judiciary Committee that: "Pursuant to Section 403 
of the Congressional Budget Act of 1974, the Congressional Budget 
Office has reviewed S. 2278, a bill to award attorneys' fees to prevailing 
parties in civil rights suits. 

"Based on this review, it appears that no additional costs to the 
government would be incurred as a result of the enactment of this 



S.R. 1011 



SENATE DEBATES 



[122 Cong. Rec. S 16250 (daily ed., Sept. 21, 1976) ] 



Civil Rights Attorney's Fees Awards Act 



Mr. Robert C. Byrd. Mr. President, I move that the Senate proceed 
to the consideration of S. 2278. 

The Presiding Officer (Mr. Rollings). The bill will be stated by 
title. 

The legislative clerk read as follows : 

A bill (S. 2278), the Civil Rights Attorney's Fees Awards Act of 1975. 

A Ir. Robert C. Byrd. I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to proceed. The yeas and nays have been ordered. The clerk will call 
the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Xevada (Mr. Cannon), the Senator from 
Idaho (Mr. Church), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale), 
(he Senator from Xew Mexico (Mr. Montoya), the Senator from Cali- 
fornia (Mr. Tunney), and the Senator from Kentucky (Mr. Ford) 
are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern), are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall). the Senator from Tennessee (Mr. Brock), the Senator from 
Xew York (Mr. Buckley) . the Senator from Maryland (Mr. Mathias) , 
and the Senator from Idaho (Mr. McClure) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 69, nays 12. as follows : 



[Rollcall Vote No. 613 Leg.] 



YEAS— 69 



Abourezk 
Bartlett 
Bayh 



Byrd, Harry F.. Jr. 

Byrd, Robert C. 

Case 

Chiles 

Clark 

Cranston 

Culver 

Curtis 



Dole 

Domemci 
Durkin 
Eagleton 



Bellmon 
Biden 



Fong 
Gam 
Gravel 
Griffin 



Brooke 

Bumpers 

Burdick 



(17) 



18 



Y HAS— 69— Continued » 



Hart. Gary 


Long 


Ribicoff 


Haskell 


Magnuson 


Roth 


Hatfield 


Mc In tyre 


Schweiker 


Hathaway 


Metcalf 


Scott, Hugh 


Ilollings 


Moss 


Sparkman 


Hruska 


Muskie 


Stafford 


Huddleston 


Nelson 


Stevens 


Humphrey 


Xunn 


Stevenson 


lnouye 


Packwood 


Stone 


T'ir-lr<r>Ti 


Pastore 


Svminerton 


.Tavits 


Pearson 


Taft 


Johnston 


Pell 


Talmadge 


Kennedy 


Percy 


Weicker 


Laxalt 


Proxmire 


Williams 


Leahy 


Randolph 


Young 




NAYS— 12 




Allen 


Helms 


Thurmond 


Eastland 


McClellan 


Tower 


Fannin 


Morgan 




Goldwater 


Scott, William L. 




Hansen 


S tennis 






NOT VOTING— 19 




Baker 


Ford 


McGee 


Beall 


Glenn 


McGovern 


Bentsen 


Hart. Philip A. 


Mondale 


Brock 


Hartke 


Montoya 


Buckley 


Mansfield 


Tunney 


Cannon 


Mathias 




Church 


McClure 





So Mr. Robert C. Byrd's motion was agreed to. 



Cloture Motion 

Mr. Robert C. Byrd. Mr, President, I send a cloture motion to the 
desk. 

The Presiding Officer. The cloture motion having been presented 
under rule XXII, the Chair, without objection, directs the clerk to 
read the motion. 

The legislative clerk read as follows : 

Cloture Motion 

We, the undersigned Senators, in accordance with the provisions of Rule XXII 
of the Standing Rules of the Senate, hereby move to bring to a close the debate 

upon S. 

[S 16251] 1 

2278, the Civil Rights Attorney's Fees Awards Act of 1975. 

Hubert H. Humphrey, Birch Bayh, Quentin N. Burdick. Alan Cranston, 
Robert C. Byrd. Patrick J. Leahy, William D. Hathaway, Dick 
( lark. Edward M. Kennedy. James Abourezk, Hugh Scott, Harri- 
son A. Williams. John A. Durkin, James B. Pearson, Bob Pack- 
wood, Frank E. Moss, Jacob K. Javits, William Proxmire, Henry 
M. Jackson, Lowell P. Weicker, Mark O. Hatfield. 



1 Congressional Record pages are shown In brackets. 



19 



Civii, Eights Attorney's Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorney's Fees Award Act of 1975. 

Mr. Hugh Scott. Mr. President, I rise in support of S. 2278. 

I believe it ranks among the most important measures we will act on 
this year. Simply stated. S. 2278 is designed principally to allow the 
courts to award attorneys fees to prevailing plaintiffs in civil rights 
cases. Such a provision would greatly aid the cause of human rights in 
this country, would cost the Government nothing, and would make 
the civil rights laws almost self-enforcing. 

If we pass this worthwhile measure, we will do a great service in 
the continuing battle to eradicate discrimination in the United States. 
And we will do so without an increase in the Federal budget or in the 
bureaucracy. 

Each of the provisions covered by S. 2278 relies upon private enforce- 
ment. Recently, spiraling court costs have created an absolute necessity 
of attorney's fee provisions in those civil rights statutes which contain 
citizen suit provisions. Congress should encourage citizens to go to 
court in private suits to vindicate its polices and protect their rights. 
To do so. Congress must insure that thev have the mea?is to go to court 
and to be effective once they get there. This is particularly true in the 
civil rights area, where those men and women whom the laws protect 
are rarely, if ever, in a financial position to undertake the costly task of 
enforcement of their rights. 

The enactment of S. 2278 is needed to assure that attorney's fees will 
be available in suits brought under the reconstruction-era civil rights 
laws, title VI of the 1964 Civil Rights Act, and title IX of the Educa- 
tion Amendments of 1972 in the same fashion and to the same extent 
as the statutes presently provide in cases brought under title VII of 
the 1964 Civil Rights Act. Mr. President, as a nation of laws, and as 
a government of laws, we should welcome citizen suits which succeed 
in enforcing the laws. Attorney's fees have proven to be a singularly 
effective and flexible way to encourage private enforcement of public 
rights, and I strongly urge this body to accept S. 2278. 

My one regret is that the distinguished Senator from Michigan (Mr. 
Philip A. Hart) , who has been at my side so often in the past fight- 
ing for the cause of civil rights, cannot be with us for the last battle 
of this final campaign. His efforts on behalf of the bill earlier in the 
session proved decisive, however. Without his powerful intellect and 
moral suasion, the bill would have languished in committee. I know 
he too joins us in urging its passage. 

Mr. Mathias. Mr. President, as a supporter of civil rights for all 
Americans, I support S. 2278, the Civil Rights Attornev's Fees Awards 
Act. 

The goal of S. 2278 is clear and compelling — to insure that the high 
cost of litigation does not bar the Federal courts to citizens who seek 
to enforce their rights under our civil rights laws. By passing S. 2278, 
the Senate can transform this goal into a reality. 

The need for this bill arises from a recent Supreme Court decision 
which has erected a formidable financial barrier against those seeking 



20 



access to Federal courts and has consequently dealt a serious blow to 
the effective enforcement of our civil rights laws. Specifically, in 
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 
( 1975 ) the Supreme Court held that Congress, not the judiciary, should 
authorize the award of attorney fees in cases arising under Federal 
laws. The Court found that in the absence of clear statutory language 
the courts were powerless to award attorney's fees. 

Given the often staggering costs of litigation, this decision has pre- 
dictably slowed the number of private suits brought to enforce fed- 
erally mandated rights, including cases premised upon our civil rights 
laws. Alyeska presented Congress with an opportunity to enact legisla- 
tion to help insure that one's financial resources need not be a pre- 
requisite to access to Federal court. 

I believe that S. 2278 constitutes a much needed response to Alyeska 
and is necessary to guarantee the proper enforcement of our civil rights 
laws which the Congress has so earnestly labored for in the past. Unless 
the Congress enacts S. 2278, one of the groups of potential litigants 
most severely affected by Alyeska — those persons seeking to assert their 
rights under Federal civil rights statutes — will frequently be denied 
access to Federal courts. 

Mr. President, we must bear in mind at all times that rights that can- 
not be enforced through the legal process are valueless : such a situa- 
tion breeds cynicism about the basic fairness of our judicial system. 
Consequent h T , Congress must be vigilant to insure that our legal rights 
are not hollow ones. 

The vigilance is especially important at a time when access of in- 
dividuals to our Federal courts has been severely limited by several 
recent Supreme Court decisions interpreting Federal statutes. Mr. 
Justice Brennan poignantly described the inequities flowing from such 
restrictive judicial rulings : 

A series of decisions have shaped the doctrines of jurisdiction, justiciability 
and remedy, so as to increasingly bar the federal courthouse door in the absence of 
showings probably impossible to make. It is true of course that there has been an 
increasing amount of litigation of all types filling the calendars of virtually every 
state and federal court. But a solution that shuts the courthouse door in the face 
of a litigant with a legitimate claim for relief, particularly a claim for a depriva- 
tion of a constitutional right, seems, to be not only the wrong tool but a danger- 
ous tool for solving the problem. The victims of the use of that tool are most often 
the litigants in need for judicial protection of their rights : the poor, the under- 
privileged, the deprived minorities. The very life blood of courts is the popular con- 
fidence that they mete out evenhanded justice and any discrimination that denies 
these groups access to the courts for resolution of their meritorious claims, un- 
necessarily risks loss of that confidence. 

I fully concur with the views expressed by Justice Brennan and I 
urge my colleagues to keep his eloquent words in mind when consider- 
ing S. 2278 and related legislation. 

Mr. President, I believe that it is incumbent upon Congress to do its 
part to insure the proper enforcement of our civil rights laws. Bv 
providing for reasonable counsel fees to prevailing parties in civil 
rights cases, the Congress can take a giant step in that direction by 
minimizing the formidable barrier erected by the Court's decision. I 
urge my colleagues to act favorably upon S. 2278. 



21 



UP AMENDMENT NO. 4 69 

(Subsequently Numbered Amendment 2347) 

Mr. Kennedy. Mr. President, I send to the desk an amendment and 
ask for its immediate consideration. 

The Presiding Officer. The amendment will be stated. 
The legislative clerk read as follows : 

The Senator from Massachusetts (Mr. Kennedy) proposes an imprinted 
amendment numbered 469 : 

Strike out all after the enacting clause and insert in lieu thereof the following : 
That this Act may be cited as "The Civil Rights Attorney's Fees Awards Act 
of 1976". 

Sec. 2. That the Revised Statutes section 722 (42 U.S.C. 1968) is amended by 
adding the following: "In any action or proceeding to enforce a provision of 
sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of 
Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, other than the United States, a reason- 
able attorney's fee as part of the costs". 

Mr. Kennedy. Mr. President, I yield for a unanimous-consent re- 
quest to the Senator from Maine without losing my right to the floor. 
The Presiding Officer. Is there objection? 
Mr. Muskie addressed the Chair. 

Mr. Allen. Mr. President, there will be no unanimous-consent re- 
quests granted in the Senate until this matter has been disposed of as 
long as I am on the floor. I object. 

The Presiding Officer. Objection is heard. 

The Senator from Massachusetts has the floor. 

Mr. Kennedy. Then, Mr. President, I ask that Jim Davidson be 
granted privilege of the floor. 
Mr. Allen. I object. 

The Presiding Officer. Objection is heard. 

Mr. Kennedy. Mr. President, the purpose of this amendment is 
rather simple, yet it is important. It has the support of the admin- 
istration. It is, basically, to conform this legislation to the legislation 
that is presently 'before the House. 

[S 16252] 

It will thus expedite final enactment of this bill. 

Mr. President, the Civil Rights Attorneys' Fees Awards Act au- 
thorizes Federal courts to award attorneys' fees to a prevailing party 
in suits brought to enforce certain civil rights acts. This bill would 
close a series of loopholes in our civil rights laws created by the Su- 
preme Court's Alyeska decision last year, and would reestablish a uni- 
formity in the remedies available under Federal laws guaranteeing 
civil and constitutional rights. 

The basic principle embodied in this bill is not obscure or novel. The 
Supreme Court ruled in the Alyeska case that courts may award attor- 
neys' fees to successful litigants only where Congress has specifically 
authorized "fee-shifting"' by statute. Although prior to this decision 
Federal courts had been awarding fees to successful plaintiffs in cases 



22 



brought under a 'broad variety of civil rights laws, the Court's Alyeska 
ruling created enormous incongruities in that private citizens can now 
afford to seek enforcement of only those civil rights laws which con- 
tain explicit provisions for fee-shifting. The result is plain : few private 
civil rights enforcement actions can now be brought under these Fed- 
eral statutes not providing for fee awards. The bill before us today 
would eliminate this anomaly by permitting courts to make discre- 
tionary fee awards under all Federal civil rights statutes. 

The Senate and House versions of the bill differ in only one sub- 
stantive respect: in addition to those civil rights statutes included 
within the coverage of the bill reported by the Senate Judiciary Com- 
mittee, the House bill includes coverage of title IX of Public Law 
92-318, the Education Amendments of 1972. Inclusion of cases brought 
under title IX would mean that where educational programs which 
recei ve Federal assistance discriminate on the basis of sex or blindness, 
courts would be able to make discretionary awards of attorneys' fees 
to successful litigants in order to assist private enforcement efforts in 
this crucial area of the law. 

I am therefore offering an amendment in the nature of a substitute 
to S. 2278, which would confirm the language of the bill precisely to 
the House bill, H.R. 15460. Inclusion of title IX cases provides a useful 
improvement in the bill, and one which has the full support of the 
bill's Senate sponsors. The administration itself also expressed support 
for this amendment when it was offered during the House Judiciary 
Committee markup on the bill. 

In recent years, there has been a growing recognition that discrim- 
ination on the basis of sex is both pervasive and persistent. For that 
reason Congress has banned sex discrimination in such areas as em- 
ployment, housing, credit, and, in title IX of the Emergency School 
A id A et, education programs or activities which receive Federal assist- 
ance. The title is the analog, in the field of education, of title VI of 
the. Civil Rights Act of 1964, which prohibits discrimination on the 
basis of race or sex, they violate fundamental rights which are at the 
bedrock of our society's notions of fair play and human decency. It 
is Congress' obligation to enforce the 14th amendment by eliminating 
entirely such forms of discrimination, and that is why both title VI 
of the Civil Rights Act of 1964 and title IX of the Education Amend- 
ments of 1972 have been included. As basic provisions of the civil 
rights enforcement scheme that Congress has created, it is essential 
that private enforcement be made possible by authorizing attorneys' 
fees in this essential area of the law. 

Where title IX is violated by a public school system, section 1983 
is also involved, as in Lau v. Nichols* 414 U.S. 563 (1974) . But in many 
cases title IX involves other situations, for example, a private voca- 
tional school receiving Federal assistance which discriminates on the 
basis of sex in its admissions policy. In these cases, only title IX would 
reach this pernicious form of discrimination. 

Title IX also reaches another pernicious form of discrimination — 
that against blind people and those who are visually impaired — and in 
these circum stances the same fundamental principles apply. 

Mr. President, the bill now before the Senate addresses the issue of 
citizen access to the courts in a direct and effective manner. As chairman 
of the Subcommittee on Administrative Practice and Procedure, I have 



23 



been concerned with removing legislative and judicial barriers which 
have the effect of denying citizens full access to the courts in order to 
secure their legal rights. It is of little moment for the Congress to 
enact laws expanding the protections afforded citizens in securing jobs, 
housing, credit, or education without insuring that the beneficiaries of 
our laws have the means of enforcing compliance with them, legal 
battles to vindicate basic human rights — congressionally secured 
rights — can be as costly as any other form of litigation, and the costs 
frequently outrun the economic benefits ultimately obtained by success- 
ful litigants. Inevitably this leads to the inability of the victims of 
discrimination to obtain legal redress because they cannot shoulder the 
full costs of vindicating their rights. 

Fee-shifting is a time-honored judicial remedy. And Congress has 
already provided for recovery of attorneys' fees in over 50 pieces of 
legislation. Where Congress decides to emphasize certain policies, and 
correspondingly to secure private rights or encourage more vigorous 
enforcement of Federal laws, Congress frequently includes fee- 
recovery provisions in its enactments. An attorneys' fees provision was 
most recently included for example, in the Hart-Scott-Rodino Anti- 
trust Improvement Act for injunctive actions brought under the 
Clayton Antitrust Act. 

I believe that it is especially important that the availability of fee 
awards be expanded to encompass all major Federal civil rights laws. 
Not just a select few — chosen through historical accident — but all the 
civil rights laws of this country must be complied with. Long experi- 
ence has demonstrated, however, that Government enforcement alone 
cannot accomplish this. Private enforcement of these laws by those 
most directly affected must continue to receive full congressional sup- 
port. Fee shifting provides a mechanism which can give full effect to 
our civil rights laws, at no added cost to the Government. 

Mr. President, while I hope this bill can be passed by both Houses 
and signed into law before Congress adjourns, I think it is important 
that we realize that our efforts to improve citizen access to the courts 
will not end with the enactment of this legislation. Earlier this year the 
Judiciary Committee reported S. 2715, which would authorize, among 
other things, awards of attorneys' fees in judicial actions for review of 
certain Federal administrative decisions. While I do not anticipate 
that the Senate will be able to act on this bill before the end of this 
session, I consider it to be essential to Congress' overall effort to in- 
volve citizens in the enforcement of our laws, and I intend to press for 
prompt Senate action in the next session. 

The bill now before us, Mr. President, does not create any new 
legal remedies, nor does it expand our civil rights laws into new areas 
which Congress has not previously considered. It merely lends sub- 
stance to the private enforcement of rights already authorized under 
existing civil rights laws. 

Furthermore, the bill will not create any new burdens for the courts. 
Rather, it is intended simply to expressly authorize the courts to con- 
tinue to make the kinds of awards of legal fees that they had been al- 
lowing prior to the Alyeska decision. 

It is a fundamental axiom of law that where there is a right the law 
should provide a remedy. Yet, without a provision to permit awards of 
attorneys' fees to successful parties, the rights secured by those civil 



24 



rights l :v> s covered by i his act arc hollow fights indeed. Enactment 
q£ \U\> Legislation would do much to assure all the citizens of this 
Nation that the words "equal protection of law" mean what they say. 
and ihnt Congress firmly intends that all pur civil rights laws be 
vigorously enforced. 

Air. President, I do not intend to spend any more time discussing 
this particular amendment because it is well understood. It involves 
issues the Senate has acted on in the past. 

It does seem to me to be an extremely important amendment. It will 
expedite the passage of this legislation. It does have the support of 
the administration. T am very hopeful it will be accepted here this 
afternoon. 

The Presiding Officer. The question is on the adoption 

Mr. Allen addressed the Chair. 
The Presiding Officer. The Senator from Alabama. 
Mr. Allen. Mr. President, may I inquire of the Chair if this is a 
printed amendment or if this is an imprinted amendment ? 
The Presiding Officer. It is an imprinted amendment. 
Mr. Allen. T wonder if copies might be made available to Senators. 
The Presiding Officer. A copy will be provided to the Senator. 
Mr. Allen addressed the Chair. 
The Presiding Officer. The Senator from Alabama. 

[S 16253] 

Mr. Allen. Mr. President, I am delighted to find the distinguished 
Senator from Massachusetts (Mr. Kennedy) acting as floor leader for 
the administration with respect to this particular amendment. 

It is interesting that he would represent the administration on the 
floor of the Senate. It is interesting to see he is doing that, 

T am interested to see that his vieAvs correspond with the views of the 
administration with respect to this particular subject. 

Mr. President, this Congress may well go down in history as the 
Congress that provided more bonanzas to the legal profession than any 
other Congress in history. 

We have already passed antitrust legislation which provides that the 
attorneys general of the various States may farm out these antitrust 
cases to attorneys of their choice as political favors, if they so desire, 
and I assume they would, and, in some cases, treble damages are avail- 
able. 

Mr. President, inasmuch as we did not accept the House language 
with respect to banning contingency fees, these attorneys can collect, 
these favored few can collect, in some cases — and it is not beyond the 
realm of the possible — literally millions of dollars for their services. 
Here, again, we are providing not one single additional substantive 
civil right or the enforcement of one single civil right provision but 
are, instead, providing for attorney fees in civil rights cases, attorney 
fees to be set by the court. 

Frankly. Mr. President, I do not know what has happened to this 
idea from the time it wns considered by the Subcommittee on the Rep- 
resentation of Citizen Interests of the Judiciary Committee in 1973. 
According to the committee report, this matter was considered in 1073. 

I f it was such ;i good idea, Mr. President, it seems to me that the Sen- 



25 



ate would have been called upon to act on it before now ; 1973 was the 
last Congress. Apparently nothing happened to the bill in the last Con- 
gress. It does not say that the Judiciary Committee ever reported it 
after the subcommittee studied it. If it was such a great idea. I wonder 
why 1 it did not get out of the Judiciary Committee back in 1973 to come 
to the Senate floor. There must have been some good reason because 
I am sure there were plenty of advocates to the legislation. 

I am wondering if a person advocating this legislation is interested 
in civil rights or if he is interested in attorney's fees. 

Mr. President, I am a member of the legal profession, having been 
admitted to the bar in Alabama in 1935. When I came to the Senate 
I ceased all law practice, directly and indirectly, with the exception of 
the fact that I have, on occasion, filed amicus curiae briefs in the 
Supreme Court on matters affecting the well being of the people of the 
State of Alabama. But I still retain my high regard, my deep interest, 
in the legal profession and in the welfare of the legal profession. I like 
to see lawyers make fees. I have absolutely no objection to that. I want 
to see it. 

Mr. President, I do not see am T reason for bringing up a Senate bill 
which was considered by the subcommittee back in 1973. I do not have 
the record of what happened to it in the committee. I am going to try 
to find out if it was defeated in the committee. In 1973 it was passed 
out of the subcommittee of the Judiciary Committee. It has not arrived 
on the floor from 1973 until this very day. unless I am mistaken. I do 
not see any indication that it has. I am sure if it has arrived. I will be 
corrected in time. 

Mr. Kennedy. If the Senator will yield at that point 

Mr. Aleen. Xo. I do not yield. The Senator will have an opportu- 
nity to speak. 

Mr. Kennedy. If the Senator does not want to yield for a question, 
I will wait. 

Mr. Aelen. Very well, I will yield for a question. 

Mr. Kennedy. Was this the same provision included in the voting 
rights of 1975 which passed the Judiciary Committee and actually 
came before the Senate ? 

Mr. J\.llen. I am talking about this bill. It was never considered on 
the Senate floor. 

Mr. Kennedy. It was passed out of the Judiciary Committee and in- 
cluded in the Voting Rights Act of 1975. 

Mr. Allen. It never came out on the floor here. 

Mr. Kennedy. The Senator is not correct. It was included in the 
Voting Rights Act and it passed the Judiciary Committee. It was not 
enacted as part of the final Voting Rights Act because the Senate ac- 
tually accepted the House provisions. But I think it is quite clear that 
it was already considered in the Judiciary Committee. 

Mr. Allen. The Senator answers his own question. What the Sen- 
ator from Alabama said was that this bill had never been considered 
on the Senate floor. The Senator from Massachusetts has added no in- 
formation contrary to that. He states that this provision was in the 
Senate bill which passed the Judiciary Committee, not in a separate 
bill, but he also says that the Senate did not consider that bill and in- 
stead co7isidered the House bill. 

Mr. Kennedy. Will the Senator yield for a question. 



26 



Mr. Ali.ex. For a question. 

Mr. Kennedy. The record of the previous discussion was the point 
where 1 lie Senator said that it was considered in the Senate Committee 
on the Judiciary, that it passed the Senate Committee on the Judiciary 
and it was reported. The Senator is correct that it was not considered 
on the floor because the Senate considered the House-passed bill. 

The record will show whether the Senator stated that or whether the 
Senator said that the Senate Committee on the Judiciary did not con- 
sider it. 

I am correcting the Senator's suggestion that the Judiciary Com- 
mittee did not consider it. It did consider it. It did report it and it did 
feel t hat it was a good idea at that particular time. 

Mr. Allen. In answer to what the Senator from Massachusetts said, 
t lie Senator from Alabama said that this bill, apparently, and I am 
referring to the committee report, was not acted upon by the full com- 
mittee. T will stand by that and back it up with this committee report 
from the Senator's own committee, the Committee on the Judiciary. 

lie is saying that this was a provision in another bill having to do 
with an entirely different matter. I had stated that it was never acted 
upon here on the Senate floor. It was never considered here on the Sen- 
ate floor. I will stand by that statement, The Senator has not pro- 
duced any evidence that the bill or this provision was ever considered 
on the Senate floor. 

Xoav, Mr. President, if it was reported by the Senate Committee on 
the Judiciary and it was so important, why did the Senate not act on 
it? It seems like a pretty easy bill to bring up. All they have to do is 
put in a 7iondebatable motion that it come up and it will. So here it is. 

This lull apparently laid dormant from the subcommittee hearing in 
1073 until it was passed in this Congress, but had never before been 
considered, before today here on the floor of the Senate, from 1973 on. 

This particular provision, Mr. President, the Senator says was in 
another bill. Well, that bill, though reported out of the Committee on 
the Judiciary, has never been considered on the Senate floor. So if it 
is such a great bill, if it is an idea whose time has come, if these attor- 
neys need their fees. I guess they needed them back in 1973, and they 
needed them in 1974, and they needed them in 1975, and they needed 
them in the first 8 months of 1976 ; but nothing was done to help these 
poor attorneys under that bill. No action on the Senate floor. 

Advocates of the bill having full control of the Senate machinery, 
advocates of the bill having full control of the committee system, 
advocates of the bill having a topheavy vote on bringing the matter 
up, why has it not been considered on the Senate floor, if it is so great ? 
That is what puzzles the Senator from Alabama. 

So ftow, Mr. President, as the Senate is supposed to be racing toward 
adjournment on October 1 or October 2. here we are, taking up the time 
of the Senate and taking up the time of Congress on a Senate bill that 
T assume will go to a committee over in the House of Kepresentatives 
after it passes here. I assume it will, though they seem to have a way 
of shortcut' ir. ? committees when they want to. I assume this matter 
will rro to a committee over there, and 'maybe they will have an amend- 
ment, and it may go to conference. But how are we going to work all 
those things in. in the short time that remains to the Senate on this 
matter? 



27 



Also, if it was such an important bill, I wonder why the author 
of the bill is not here to vouch for the bill, and why it is necessary 
for him to pass the mantle 

[S 16254] 

of leadership on this important attorneys' fees bill over to the dis- 
tinguished Senator from Massachusetts, who also is a lawyer, as is 
the distinguished Senator from California (Mr. Tunney). 

You know, Mr. President, I kind of hate to embarrass the distin- 
guished Senator from California (Mr. Tunney) by bringing this bill 
up in his absence. I just do not feel that the proponents of the bill 
should have embarrassed our good friend from California, who is in 
a life-and-cleath struggle out in California to retain his seat. But I 
predict that before this bill is passed — and it will be several days before 
it passes, I assure the Senate — before this bill passes, the distinguished 
Senator from California (Mr. Tunney) will show up to make a speech 
in behalf of his brother attorneys, because mistake it not, this is a 
lawyers' bill. 

I hazard the guess that they are not satisfied with the action by 
Congress in providing windfalls in the tens of millions of dollars 
for the bar throughout the 50 States of the Union under the antitrust 
bill. They are not content with that, Mr. President, They come forward 
and say, "Oops, the Supreme Court has said that in many cases 
attorneys' fees in civil rights cases are not allowed. We have got to 
do something about that," 

That is what the Supreme Court said. The Supreme Court held, in 
the case mentioned by the distinguished Senator from Massachusetts, 
the Alyeska case, that the courts do not have the power under their 
equity powers to grant attorneys fees in cases unless there is a specific 
authorization by Congress for such fees to be paid. 

Mr. President, you can imagine the consternation that this ruling 
by the Supreme Court caused in legal circles. "Why, the Supreme 
Court says we can't collect attorneys' fees when we prosecute civil 
rights cases." I do not knoAY that these attorneys came to be sponsors 
of this legislation here in the Senate. They said, "We have got to 
straighten this out; we have got to make provision for attorneys' 
fees." There is not one single additional civil rights protection in this 
measure; so what is the concern? Is the concern for protecting civil 
rights, or is it for protecting the fees of attorneys, who have grown 
fat on litigation of this sort? 

Mr. President, there is a term in the law or a word in the law called 
"barratry." That is a word that is applied to the stirring up of 
litigation. 

Mr. President, barratry is unethical if not illegal. So we might con- 
clude, Mr. President, that this bill would constitute, if there could be 
such a designation, legal and ethical barratry, if that were not a con- 
tradiction in terms, which it is. This bill would stir up litigation, 
because, with all due respect to my brothers at the bar, the average 
attorney is not going to work up too much enthusiasm about bringing 
a civil rights case unless he sees a prospect of obtaining a fee. 

There are organizations that in many cases do good work in furnish- 
ing legal counsel. The Civil Liberties Union has made a notable con- 



28 



tribution in furnishing coun^l unpaid by the litigant in many areas 
where the legal rights of an individual are being trampled upon. But 
here, Mr. President, we have a bill whose sole purpose is to provide at- 
torneys fees lor attorneys who file suits under the various sections 
men! toned in the bill. 

So. I do not believe this bill for the aid of attorneys ought to be 
taking up the important time of the Senate. Let us let them suffer 
along for a lew months. We will have another Congress convening 
January I do not know, though, whether this measure will fare so 
well in another Congress or not. 

I do not propose to predict the outcome of the November Presiden- 
tial election, but if the Democratic candidate should be elected — and 
the chances are that he will — I do not know whether he would look 
with such great favor on a bill providing attorney's fees for lawyers. 
( me of his standard statements, in identifying himself at speeches that 
he has made from time to time, is that he is these various things — these 
various things being a peanut farmer and a Christian. He is not a 
lawyer, though, he is quick to emphasize. So I do not know what the 
Democratic candidate thinks he might gain from saying he is not a 
lawyer, unless there are many who feel that lawyers are able to take 
care of themselves, and it is my observation that they are. I do not be- 
lie 1 ve we need this legislation that would add more areas open for at- 
torneys fees. 

We have not had an explanation of the bill, Mr. President, of course. 
Il was immediately brought up. There was not one word of explana- 
tion about it. There is an amendment, I guess a substitute. I have not 
had an opportunity to examine it too closely. Yet, it is a substitute, 
and. of course, it will wipe out the provisions of the other bill. 

But tli ere has been not one word of explanation about the bill — not 
one. There has been scant explanation of the substitute. Then it is up 
for a quick vote unless someone should see fit to address some remarks 
with respect to the bill. 

I might state, also, that since this is a substitute, if it should be 
adopted — and it looked as if it were pretty well on track to be 
adopted — it woiild cut the Senate off from any amendment whatsoever 
on this bill. There would be no further amendments. Earn it through. 
Take care of the attorneys. Add no more civil rights. Protect no more 
civil rights. Only see that the attorneys get paid. That is what this bill 
does. And here we are in the Senate considering a bill to provide at- 
torneys fees for attorneys. 

Mr. President, there are a number of provisions now under which 
attorneys fees can be paid. As a matter of fact, I see here at the bot- 
tom of page 3 of the report that the last two lines has this interesting- 
sentence : 

Since 1964 every major civil rights law passed by the Congress has included or 
has been amended to include one or more fee provisions. 

Mr. President, if that be true, why are we working on this? I am 
simply taking the Committee on the Judiciary at its word. They pre- 
pared the report. I did not. 

But the report says : 

Since 1964 every major civil rights law passed by the Congress has included 
or has been amended to include one or more fee provisions. 



29 



So there is not one word of explanation of what civil rights provi- 
sions do not have attorneys fees attached to them, and the very wording 
of the committee report on this very bill — it is not on something else — 
says that 

. . . every major civil rights law passed by the Congress has included or has 
been amended to include one or more fee provisions. 

That being true, what is the need of this bill ? It provides attorneys 
fees for every civil rights law that has passed since 1964. How much 
farther back need you go I That is when the great breakthrough came — 
in 1064. 

And it gives some examples of these acts that do have attorney's 
fees, but I am relying on this statement in the Judiciary Committee 
report that all of these civil rights laws, all the major ones, passed 
since 1064 have fee provisions attached. 

That being true, what is the need of this bill i 

At the top of page 4 they give some specific examples, without 
limiting the generality of the other statement which says "AH major 
civil rights laws when passed had attorney's fees provided, or were 
later amended to provide attorney's fees,*' then, as I say, without limit- 
ing the generality of that statement, they give examples of some of the 
civil rights laws that do have attorney's fees attached. 

I note that throughout all the bills of this type, very high in the 
priority of those pushing bills of this sort is that there be a provision 
for paying attorney's fees. Let us take care of the attorneys. Civil 
rights take care of themselves. Let us take care of the attorneys. That 
is what this bill does. Let us see some of the acts that the Judiciary 
Committee savs have attorney's fees. 

They say that title VIII of the Civil Eights Act of 1968, codified 
in 42 U.S.C., section 3612(c), has attorney's fees attached. Then the 
Emergency School Aid Act of 1972, which is codified in 20 U.S.C., 
section 1617, has attornev's fees attached. Then Equal Employment 
Amendments of 1972. codified in 41 U.S.C.. section 2000(e) 16(b) has 
attorney's fees. Then there is the Voting Eights Act Extension of 1975, 
42 LLS.C, section 1973(e). Those laws specifically have attorney's fees 
provided. 

However, the report, itself, says that all major civil rights acts have 
attorney's fees attached. YThat do we conclude from that ? Also, what 
is a major civil rights law and what is a minor civil rights law ? If, as 
the Judiciary Committee on the report says, every major civil rights 
law passed by Congress has included or has been amended to include 
one or more fee provisions and they are bringing in another bill, I 
would have to assume from that, by a process of reasoning, by a process 
of logic, by use of a syllogism, that this bill must refer — in the lan- 
guage, not of the Senator from Alabama, but in the language of the 
Committee on the Judiciary — to minor civil rights laws. It said that 
all major civil rights laws have that attached. So what is a minor civil 
rights law \ 

[S 16255] 

I do not regard any civil rights law as being minor. It has to do 
with the rights of an individual, the rights to equal protection under 
the law. It is a major civil rights. There are no minor civil rights. I 



30 



will have to disagree with the Judiciary Committee in apparently 
branding the civil rights referred to in these sections as minor civil 
rights! That docs not follow the reasoning of the Senator from 



The Senate has voted to proceed to the consideration of this bill 
by a top heavy vote. Saving done so, it is going to continue to stay 
on this bill. I say to the distinguished Senator who made the request 
a moment ago that as soon as the Senator from Alabama sits down, it 
would not take unanimous consent to bring up a House message. He 

could call it up and move 

Mr. Pastore. Not while the Senator is on his feet. 
Mr. Allen. I stated that as soon as the Senator from Alabama gives 
up the floor, he could comply with the request of the distinguished 
Senator. 

R { r. Pastore. T do not have to be told that. 

Mr. Allen. That being the case, we will not worry about it. 

Mr. Pastore. I was only asking for a courtesy. I know the rules. 

Mr. Allen. I thank the Senator. I want to accommodate him, but 
apparently he does not want to be accommodated. 

Mr. President, what we are dealing with here — and I am somewhat 
in the dark, because there has been no explanation given, as to the 
thrust of this bill, other than that it provides attorneys' fees in civil 
l ights cases — is that, somewhere along the line, I would like the pro- 
ponents of the bill to explain what minor civil rights are involved in 
the bill, inasmuch as the report says that all major civil rights laws 
passed by Congress have included a fee provision. So somewhere 
along the line, I assume, Mr. President, we will find out. 

At this time, I move to table the substitute offered by the distin- 
guished Senator from Massachusetts (Mr. Kennedy), and I ask for 
the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is not a 
sufficient second. 



Mr. Allen, Mr. President. I suggest the absence of a quorum. 
The Presiding Officer. The clerk will call the roll. 
The assistant legislative clerk proceeded to call the roll. 
Mr. Kennedy. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded. 
Mr. Allen. I object. 

The Presiding Officer (Mr. Abourezk). Objection is heard. 

Mr. Kennedy. Mr. President, I move that the Sergeant at Arms be 
instructed to request the presence of the absent Senators. 

Mr. Allen. The motion is out of order. Mr. President. 

The Presiding Officer. Until the roll call is completed, that motion 
is out of order. 

The clerk will continue to call the roll. 

The assistant legislative clerk resumed and completed the call of the 
roll and the following Senators answered to their names : 



Alabama. 



QUORUM CALL 



[Quorum No. 42 Leg.] 



Abourezk 

Allen 

Bayh 



Kennedy 

Leahy 

Mtiskie 



Percy 
Stennis 



31 



The Presiding Officer. A quorum is not present. 

The Clerk will call the names of the absent Senators. 

Mr. Kennedy. I ask for the yeas and nays on the motion. 

The Presiding Officer. Does the Senator make a motion to instruct ? 

Mr. Kennedy. I move that the Sergeant at Arms be instructed to 
request the presence of the absent Senators. I ask for the yeas and and 
nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The clerk will call the roll. 

The assistant legislative clerk called the role. 

Mr. Robert C. Byrd. I announce that the Senator from Nevada (Mr. 
Cannon), the Senator from Idaho (Mr. Church), the Senator from 
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip Hart), 
the Senator from Indiana (Mr. Hartke), the Senator from Wyoming 
(Mr. McGee), the Senator from Minnesota (Mr. Monelale), the Sen- 
ator from New Mexico (Mr. Montoya), the Senator from Missouri 
(Mr. Symington), and the Senator from California (Mr. Tunney) 
are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley) , and the Senator from Alaska (Mr. Stevens) 
are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent oh official business. 

The result was announced — yeas 79, nays 3, as follows: 



[Rollcall Vote No. 614 Leg.] 



YEAS — 79 



Abourezk 

Bartlett 

Bayh 

Bellmon 

Bentsen 

Biden 

Brooke 

Bumpers 

Bnrdiek 

Byrd, Harry F., Jr. 
Byrd, Robert C. 

Case 

Chiles 

Clark 

Cranston 

Culver 

Curtis 

Dole 

Domenici 

Durkin 

Eagleton 

Eastland 

Fannin 

Fong 

Garn 

Gravel 

Griffin 



Hansen 

Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Helms 

Hollings 

Hruska 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Kennedy 

Laxalt 

Leahy 

Long 

Magnuson 

Mathias 

McClellan 

McOlure 

Mclntvre 

Metcalf 

Morgan 

Moss 

Muskie 



Nelson 

Nunn 

Packvvood 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Kibicoff 

Roth 

Schweiker 

Scott, Hugh 

Scott, William L. 

Sparkman 

Stafford 

Stennis 

Stevenson 

Stone 

Taft 

Talmadge 

Thurmond 

Tower 

Williams 

Young 



79-586—77- 



4 



32 



NAYS — 3 

Allen Goldwater Weicker 

NOT VOTING— IS 

Baker Ford MeGovern 

Beall Glenn Mbndale 

Brock Hart, Philip A. Montoya 

Buckley HartKfi Stevens 

Cannon Mansfield Symington 

Church McGee Tuimey 

So the motion was agreed to. 

The Presiding Officer (Mr. Abocrezk). A quorum is present. 
The Senator from West Virginia. 

Mr. Robert C. Byrd. Mr. President, I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second I There is a suffi- 
cient second. 

The yeas and nays were ordered. 
Mr. Allen addressed the Chair. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from Alabama to lay on the table the amendment, of the 
Senator from Massachusetts. The yeas and nays have been ordered 
and the clerk will call the roll. 

The legislative clerk proceeded to call I he roll. 

Mr. Allen. I have an amendment at the desk. 

The legislative clerk resumed calling the roll. 

Mr. Allen. I have an amendment. 

Mr. Robert 0. Byrd. Mr. President. T ask for the regular order. 
The Presiding ( )fftcer. The rollcall is in progress. 
The legislative clerk resumed calling the roll. 

The Presiding Officer. The clerk will suspend until there is order 
in the Senate Chamber. 

I ask Senators — the Senator from Maine and the Senator from 
Iowa — I am going to ask for order in the Chamber and the clerk will 
suspend the rollcall until order is achieved. 

Mr. NELSON. Mr. President, the Senators obviously have not been 
able to hear the Chair, to have order in the Senate. 

The Presiding Officer. The point of the Senator from Wisconsin 
is well taken. Would the Senate please come to order? Would the 
Senate show the courtesy to the other Senators who would like to vole 
and have their vote recorded ? 

The clerk will not proceed until order has been achieved in the 
Chamber. 

The clerk may proceed. 

The legislative clerk resumed and concluded calling the roll. 

Mr. Robert C. Byrd. [ announce t hat the Senator from Xevada (Mr. 
Cannon), the Senator from Idaho (Mr. Church), the Senator from 
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Colorado (Mr. Haskell), the Senator from Wyoming (Mr. McGee), 
the Senator from Minnesota (Mr. Mondale), the Senator from New 
Mexico (Mr. Montoya), and the Senator from California (Mr. Tun- 
ney ) are necessarily absent. 



33 



I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield) , and the 



Senator from South Dakota (Mr. McGovern) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley) , and the Senator from Alaska (Mr. Stevens) 
are necessarily absent. 

I further announce that the Senator from Tennessee (Mr. Baker) 
is absent on official business. 

The result was announced — yeas 25, nays 57, as follows : 



[S 16256] 



[Rollcall Vote No. 615 Leg.] 



YEAS— 25 



Allen 

Bartlett 

Bellmon 

Byrd, Harry F., 

Curtis 

Dole 

Eastland 

Fannin 

Garn 



Jr. 



Goldwater 

Hansen 

Helms 

Hruska 

Johnston 

Laxalt 

Long 

McClellan 
McClure 



Nunn 

Scott, William L. 

Stennis 

Talmadge 

Thurmond 

Tower 

Young 



NAYS— 57 



Abourezk 

Bayh 

Bentsen 

Biden 

Brooke 

Bumpers 

Burdick 

Byrd, Robert 0. 

Case 

Chiles 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 

Fong 

Gravel 

Griffin 



Hart, Gary 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Kennedy 

Leahy 

Magnuson 

Mathias 

Mclntyre 

Metcalf 

Morgan 

Moss 

Muskie 

Nelson 



Pack wood 

Pastore 

Pearson 

PeU 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Sparkman 

Stafford 

Stevenson 

Stone 

Symington 

Taft 

Weicker 

Williams 



NOT VOTING— 18 



Baker 

Beall 

Brock 



Ford 
Glenn 

Hart, Philip A. 
Hartke 
Haskell 
Mansfield 



McGee 
McGovern 



Cannon 
Church 



Buckley 



Mondale 
Montoya 
Stevens 
Tunney 



So the motion to lay on the table was rejected. 



34 



[S 16257] 

Civil Rights Attorney's Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorney's Fees Awards Act of 1975. 

UP AMENDMENT NO. 4 70 

Mr. Helms. Mr. President, I call up an imprinted amendment which 
I have at the desk. 

The Pkksidixg Officer. The amendment will be stated. 
The legislative clerk read as follows : 

The Senator from North Carolina (Mr. Helms) proposes an imprinted amend- 
ment numbered 470 to the amendment of Mr. Kennedy numbered 469. 

The amendment is as follows : 

Sec. 3. The Congress finds that serious inequities and inequalities exist be- 
tween — 

(1) the Federal Government; and 

(2) individuals, companies, unions, other organizations and State and local 
governments in terms of the relative ease with which each is able, without 
economic hardship, to prevail or secure vindication in civil and criminal 
actions in the courts and in administrative proceedings. It is the purpose of 
the Congress in this Act to diminish these inequities and inequalities by pro- 
viding for the payment by the United States of attorney fees, expert witness 
fees, and other costs in specified situations. 

Sec. 4. (a) Section 2412 of title 28, United States Code, is amended to read as 
follows : 

"§ 2412. Attorney and witness fees and costs 

"(a) Except as otherwise provided by subsections (b) and (c) of this section 
and in section 2678 of this title, a judgment for costs, as specified in section 1920 
of this title (but not including the fees and expenses of attorneys), may be 
awarded to the prevailing party in any civil action brought by or against the 
United States in any court having jurisdiction of such action. 

"(b) A judgment for costs as specified in section 1920 of this title, for the rea- 
sonable expenses of any witnesses or expert witnesses, for the reasonable cost of 
any studies, analyses, engineering reports, tests or projects which the court finds 
necessary to litigation of the action and for a reasonable attorney fee, based upon 
the actual time expended by any attorney of a party and his or her staff in 
advising and representing a party (at prevailing rates for such services, includ- 
ing any reasonable risk factor component), may be awarded to any party, other 
than the United States or any agency or official thereof, who prevails in any 
civil action including an action for judicial review of agency action brought by 
or against the United States or any agency or official thereof in any court having 
jurisdiction of such action. 

"(c) In actions, including actions for judicial review of agency action, instituted 
by or against the United States or any agency or official thereof, in which a party 
other than the United States or any agency or official thereof — 

"(1) prevails partially, such party may be awarded a judgment for costs 
and fees, as specified in subsection (b), to the extent to which he prevails. 

" (2) does not prevail, such party may be awarded a judgment for costs and 
fees, as specified in subsection (b), in any case in which such an award would 
be in the interests of justice. 

"(d) Any amount awarded for costs and fees shall be in addition to the com- 
pensation, if any, awarded in any judgment. 

"(e) A judgment for costs and fees shall be paid in the form and manner 
provided, in sections 2414 and 2517 of this title, for the payment of judgments 
against the United States.". 

(b) The analysis of chapter 101 of title 28 of the United States Code is amended 
by amending the item relating to section 2412 of said title to read as follows: 



35 



"2412. Attorney and witness fees and costs.". 

Sec. 5. Subsection (a) of section 2517 of title 28, United States Code, is amended 
to read as follows : 

"(a) Any final judgment and any final judgment for costs and fees which is 
rendered by the Court of Claims against the United States shall be paid out 
of any general appropriation therefor, on presentation to the General Accounting 
Office of a certification of such judgment, by the clerk and the chief judge of 
such court.". 

Sec. 6. Section 2678 of title 28, United States Code, is amended to read as 
follows : 

"(a) If any judgment is rendered, or if any settlement, award, compromise or 
recommendation in favor of any party other than the United States is made, 
after the 'United States or a Federal agency has received notice that a party has 
retained a specified attorney, such party shall be awarded a reasonable attorney's 
fee, based upon the actual time expended by such attorney and his or her staff 
in advising and representing such party (at prevailing rates for such services, 
including any reasonable risk factor component) and all costs (including wit- 
ness fees, studies, analyses, engineering reports, tests and projects) necessary 
to litigation. In any other case, the court may award such costs and fees as are 
in its discretion, in the interests of justice. 

"(b) Any amount awarded under this section for costs and fees shall be in 
addition to the compensation awarded in any judgment, settlement, award, 
compromise, or recommendation.". 

Sec 7. (a) Subchapter I of chapter 5 of title 5 of the United States Code is 
amended by adding at the end thereof the following new section : 

"§ 504. Costs and fees of parties 

"(a) A party other than the United States or any agency or official thereof 
participating in an agency proceeding shall be granted by the agency conducting 
the proceeding and said agency may pay, an award for fees and costs incurred 
in order to participate in the proceeding if : 

"(1) said party is successful in his defense against imposition of a sanc- 
tion ; 

"(2) in a proceeding in which the agency is a moving party, he is suc- 
cessful in opposing issuance of an order, or in proposing an amendment to 
an order, which — 

"(A) affects the freedom of said party; 

"(B) withholds relief from said party; 

"(C) imposes a penalty or fine on said party ; 

"(D) requires the destruction, taking, seizure or withholding of prop- 
erty of said party ; 

"(E) assesses damages, reimbursement, restitution, compensation, 
costs, charges, or fees against said party ; 

"(F) requires revokes, or suspends a license of said party; or 
"(G) otherwise compels or restricts said party ; or 
"(3) a review or appeal is determined substantially in favor of the party 
which appeals a decision or which is subject to the decision reviewed. 
"(b) As used in subsection (a) of this section, an 'award for fees and costs' 
shall include the reasonable expenses of witnesses and expert witnesses and the 
reasonable cost of any studies, analyses, engineering reports, tests, or projects 
necessary to determination of the proceeding together with a reasonable attor- 
ney's or agent's fee based upon the actual time expended by such attorney or 
agent and his or her staff in advising or 

[S 16258] 

representing a party (at prevailing rates for such services, including any reason- 
able risk factor component).". 

(b) The analysis of subchapter I of chapter 5 of title 5, United States Code, is 
amended by adding at the end thereof the following new item : 

"504. Costs and fees of parties.". 

Sec 8. (a) Chapter 201 of title 18, United States Code, is amended by adding 
at the end thereof the following new section : 



3G 



M | ::oi3. Fees and costs of defendants 

'•(a) A defendant in a criminal case shall be granted by the court having juris- 
diction of the case and the United States may pay, an award to compensate said 
defendant for the reasonable attorney fees and costs incurred by him in his de- 
fense against a charge at trial and on any appeals if : 

"(1) said defendant pleads not guilty to said charge and 
"(A) said defendant is found not guilty, or 
"(B) the charge against said defendant is dismissed ; or 
"(2) said defendant is found guilty at trial and said finding is set aside 
on appeal. 

No award shall be made pursuant to paragraph (2) of subsection (a) 
of this section unless the prosecution certifies to the court that no further appeal 
will be made or unless the time for further appeal has expired. 

"(c) No award shall be made except on motion of the defendant with notice to 
the prosecution.". 

(b) The analysis of chapter 201 of title 18, United States Code is amended by 
adding at the end thereof the following new item : 

"3013. Fees and costs of defendants.". 

Mr. Helms. Mr. President, this amendment would grant successful 
litigants in civil cases or agency hearings against the Federal Govern- 
ment, and acquitted criminal defendants, the right to an award of legal 
fees and other expenses incurred in preparing and pursuing the litiga- 
tion or the defense against prosecution for a Federal crime. 

Mr. President, this amendment, in the main, is quite similar in its 
thrust to S. 2871, introduced by the able Senator from New York (Mr. 
Buckley) on January 26 of this year. There have been some modifica- 
tions, which will be obvious to Senators comparing the two pieces of 
legislation. 

It is my feeling that this legislation is necessary in order to combat 
the growing tendency of escalating legal costs to deter Americans from 
enforcing and defending their legal rights against the U.S. Govern- 
ment in the Federal district courts. 

There is no question but that the Federal Government today possesses 
an institutional power comparable to no other in our society. It spends 
more than $370 billion annually, which constitutes more than one- 
quarter of the Nation's total annual expenditures. The Federal Gov- 
ernment employs millions of persons, among whom are thousands of 
lawyers assigned to enforce and defend the often lengthy arbitrary 
regulations and rulings of hundreds of Federal departments and agen- 
cies. 

The annotated laws of the United States take up dozens of thick 
volumes. Furthermore, the Federal Government's departments, agen- 
cies, and bureaus profound regulations which are counted in the hun- 
dreds of thousands, mandating such disparate requirements as product 
safety standards, affirmative action programs, marketing practices, 
and so forth. 

Concurrent with the growth of Government, there has grown up a 
feeling of helplessness among a large portion of the population. People 
do not know how to cope with an institution the size and complexity 
of which is so great that, literally, no one can come to terms with it. 
Whether one is involved with a question regarding social security en- 
titlement or a highly technical income tax regulation, or complex anti- 
t rust practices, or welfare regulations, or the withholding of categori- 
cal grant formula funds, or Government contract disputes many of 
which have nothing to do with the commercial terms of the contract — 



37 



there is literally almost no limit to how, where, and why a private 
party, State or local government, a labor organization, or a business 
corporation might find itself confronted with the realization that the 
only practical way to protect one's rights under the law is to go to 
court. The consequences of such a dilemma are that in the usual case, 
an aggrieved party has to weigh the high cost of litigation against the 
value of the rights to be protected. In far too many cases, a party will 
knuckle under a Federal order he knows to be wrong because he can- 
not afford the cost of taking the matter to court. In the case of a private 
citizen it is only the most wealthy who could even begin to contem- 
plate the possible costs. State and local government, and therefore tax- 
payers, normally operate on tight budgets, as do labor organizations 
and business corporations. However, the Federal Government is not 
under similar constraints. Normally, the agency or bureau is funded 
to bring suits, to enforce the laws, to implement social policies. The 
imbalance is clear. 

This problem is exacerbated by the fact that the income and assets of 
the private litigant, that is to say, the average American citizen — and 
a defendant's ability to defend himself with such assets is extremely 
limited and therefore the individual citizen can be subject to a war of 
attrition on the part of a determined Federal bureaucracy. Justice for 
the citizen requires that the cost of securing justice not outweigh the 
value against the Government. It is important, also, that the expense 
of correcting error on the part of the Government — a task which could 
have wide-ranging beneficial implications for other Americans — not 
rest wholly on the party whose willingness to go to court has helped 
define the limits of Federal authority. 

This proposal for awarding legal fees and costs in civil actions ap- 
plies to all actions in which the United States or an agency or official 
is a party, including tort claims and judicial reviews of agency actions. 
Awards of fees and costs may be made by courts in favor of parties 
prevailing over the Government in actions instituted or defended hy 
the Government. If the private party prevails partially, he must be 
awarded an amount for fees and costs incurred by him in the action 
commensurate with his success. In cases in which the private party 
fails, he may be awarded fees and costs when it is in the interest of 
justice. No provision is made for a maximum limit on awards, or for 
denying or decreasing awards to prevailing parties. The costs subject 
to an award are elaborated in the amendment and the criteria for fees 
are delimited ; fees and costs are subject to the overriding consideration 
of reasonableness. 

The provision regarding fees and costs of parties in agency proceed- 
ings is intended to provide for reimbursement to persons who initiate 
such proceedings in order to compel recognition of a right which is 
denied to them by the agency either directly or indirectly. Also bene- 
fitted are those parties who must participate in a proceeding in order 
to defend a vested right against either direct or indirect agency in- 
fringement. Onlv those parties who are placed in the situation of being 
an adversary of an agency are eligible for awards of fees and costs. 
The fees and costs of intra-agency reviews and appeals of decisions 
may be awarded if those proceedings culminate in a holding in favor 
of a private party, along with fees and costs of proceedings prior to 
review or appeal. Again, awards of fees and costs are governed by the 



38 



criterion of reasonableness. Items to be included in awards are elabo- 
rated in the bill. All awards are to be made by the agency conducting 
the proceeding, and are to be paid out of the appropriation for that 
agency. 

The awarding of legal fees to successful private litigrants will not in 
any way deter Government attorneys from pursuing meritorious 
claims. Similarly, it can hardly be regarded as an incentive to spurious 
litigation, as the nonprevailing party will be awarded legal fees only 
when the interests of justice manifestly dictate. 

What this amendment will do is deter the governmental tendency 
to dispute meritorious claims in the expectation of outlasting an ad- 
versary. This is a practice which should be discouraged. 

CRIMINAL ACTIONS 

A substantial number of criminal defendants already receive, as a 
sixth amendment matter, the services of a Government-subsidized at- 
torney, irrespective of the strength of the case or the actual outcome on 
the merits. It can only be viewed as ironic that a middle-income acquit- 
ted defendant in a misdemeanor case may be required to expend virtu- 
ally all of his assets in order to finance a defense in his case, whereas 
an indigent convicted minor felon will be furnished his legal fees, and 
will frequently be released on probation with only a small fine. 

This amendment provides for awards of fees and costs for defend- 
ants who plead not guilty and are acquitted at trial or on appeal or 
who have the cases against them dismissed. The award of fees and 
costs would cover both trials and appeals if the defendant ultimately 
prevails. No provision is made for awarding fees to de- 
fendants pleading no contest, or who are found guilty. No 
maximum limit is placed on awards other than the award 
must stand to the test of reasonableness. There are no condi- 

[S 16259] 

tions under which awards to successful defendants would be denied or 
decreased, as, for example, when they succeed on a technicality of the 
law rather than on the merits. 

Air. President, I hope that the amendment to the amendment of the 
Senator from Massachusetts may be accepted without a rollcall vote. 

Mr. Mathias. Mr. President, I am wondering if the distinguished 
Senator from North Carolina could advise the Senate what he feels 
would be the cost of this amendment to the amendment ? 

Mr. Helms. The Senator from North Carolina has no estimate of 
that. I do not know that you can place a price tag on fair play to the 
individual citizen who is, under existing circumstances, being harassed 
and intimated by Federal bureaucrats. 

Mr. Matiiias. I agree with the distinguished Senator from North 
Carolina that fair play for the average citizen is simply beyond price, 
that it ought to be a basic consideration of everything that we do here, 
in the Senate and throughout the Government, and certainly in the 
courts. But there still has to be a bill paid. It appears to me that this 
would be one of the most expensive provisions and the fact that it 



39 



extends to criminal cases as well as to civil cases, I think, raises some 
very serious questions. 

What it does, of course, is change a very fundamental concept of 
American jurisprudence. Perhaps it should be changed — the concept 
of casting the burden of cost in criminal cases which have been borne 
by defendants up to this time. There are other rules prevailing in 
other countries. Perhaps they should be studied. 

But the fact is that this would be a very casual way to undertake 
one of the most fundamental changes in the procedures of the U.S. 
courts — without hearings, without any careful study, without getting 
the judgment of judges, of lawyers, of people who are going to be 
intimately involved, and the general public, whom the Senator's 
amendment seeks to help. 

I think it should be given consideration. I would not want to make 
a judgment out of hand on it. I would not want to make the judgment 
either way. 

I think^ of course, as the Senator says, fair play is beyond price. But 
there is a price tag on the last amendment, and I am wondering, in 
the absence of any kind of estimate of the cost of the amendment, 
whether it is within the budget authorization. Can the Senator advise 
the Senate as to whether there is authorization ? 

Mr. Helms. I am sure that neither the cost of the proposal of the 
distinguished Senator from Massachusetts nor this modification is 
without cost. But I will say to the Senator, I hope the Senator from 
Xorth Carolina probably may be regarded by his voting record as 
one of the more prudent spenders of the taxpayers' money in this 
body. But when it comes down to giving fair play to the average citi- 
zen — who is daily intimidated by Federal bureaucrats and Federal 
agencies, the relatively small cost will be worth it if it restrains the 
Federal bureaucrats, agencies, and bureaus, if it makes the bureau- 
crats exercise more fairness in filing charges which have no merit. So 
often, these charges are brought on the theory that, "This poor sucker 
will not have the money or the time to contest the Federal Govern- 
ment, the almighty- Federal Government, Even if it costs $1 billion, 
which it certainly will not, it would be money well spent." Of course, 
to assume that it would cost an immense amount of money is to admit 
that there are, indeed, swarms of Federal bureaucrats who now feel 
no restraint in bringing flimsy, unfair, and even frivolous actions 
against citizens and small businessmen who have neither the funds nor 
the time to defend themselves against such an onslaught, 

Mr. Mathias. Let me say if the Senator's object is to prevent the 
filing of charges that have no merit, I will go a lot further than this 
bill with him. I agree with the Senator that Si billion would be cheap 
if that is the kind of situation we have. I think more than just being 
willing to spend a little money, we ought to get rid of the people who 
are making the mistakes. If they are repetitively making mistakes 
which result in the harassment of citizens, they ought to go. 

Mr. Helms. Air. President, if the Senator will yield 

Mr. Mathias. If the Senator and I make mistakes, we go. 

Mr. Helms. If the able Senator will yield, if the Senator's proposi- 
tion were put into effect, it would require hundreds of Greyhound 
buses to move the bureaucrats out of Washington. D.C. 



40 



Mr. M atihas. Without any lark of sympathy for what the Senator 
is trying to do. I would point out, however, to take the Senator's own 
figure of $1 billion, that is a substantial amount of money to be 
raised outside the budget. 

I wanted to inquire of the Senator whether there had been a budget 
waiver. 

Mr. Helms. There lias not. I do not believe a waiver is necessary, 
but I may bo in error. In ease I am, would the Senator be willing to 
send both my amendment and the amendment of the Senator from 
Massachusetts t<> (lie Budget Committee? Would he be willing to offer 
such a motion I 

Mr. Mattitas. I do not believe we have to make that motion. I do 
think — and I want to be completely fair with the Senator from North 
Ca rolina — this amendment to the amendment would create new obliga- 
tions for the Federal Government, and it would constitute an author- 
ization without a hearing. 

Mr. Helms. The same may be true of the Kennedy amendment. 

Mr. Matittas. I think it is subject to a point of order. 

I do not want to restrict the debate on this subject, but I would be 
constrained to make a point of order whenever the Senator has com- 
pleted his observations on this subject. 

Mr. Helms. I would ask the Senator, does he hold the same position 
regarding the original Tunney bill, to which the Kennedy amendment 
in the nature of a substitute has been submitted ? 

Mr. Mvtttias. The difference the Senator will find on page 7 of the 
committee report. : 

The Congressional Budget Office, in a letter dated March 1, 1976, has advised 
the Judiciary Committee that : •'Pursuant to Section 403 of the Congressional 
Badger Act of 1974, the Congressional Budget Office has reviewed S. 2278, a 
bill to award attorneys' fees to prevailing parties in civil rights suits. 

•Based on this review, it appears that no additional costs to the government 
would he incurred as a result of the enactment of this bill." 

Mr. Helms. I think the Senator may be talking about another piece 
of legislation. 



Mr. President, while we resolve this, I suggest the absence of a 
quorum. 

The PkestdtxCt Officer. The clerk will call the roll. 
The assistant legislative clerk proceeded to called the roll. 
Mr. Mattitas. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded. 
Mr. Allen. Object. 

The Presiding Officer. Objection is heard. 

The assistant legislative clerk resumed and concluded the call of the 
roll and the following Senators entered the Chamber and answered to 
their names : 



QUORUM CALL 



[Quorum No. 43 Leg.] 



Allen 

Bnrdick 

P»yrd, Robert C. 



Hatfield 
Helms 



Hollings 
Kennedy 
Long 



Pearson 

Schweiker 

Scott, William L. 

Stone 

Thurmond 

Tower 



Chiles 
Culver 



Eastland 
Gain 

Hart, Oary 



Mathias 
McClellan 



Pack wood 



41 



The Presiding Officer (Mr. Hatfield). A quorum is not present. 

.Mr. Robert C. Byrd. Mr. President, I move that the Sergeant at 
Aims be directed to request the attendance of absent Senators. 

Mr. Mathias. Mr. President, I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion of 
the Senator from West Virginia (Mr. Robert C. Byrd) to direct the 
Sergeant at Arms to request the attendance of absent Senators. On 
this question, the yeas and na} T s have been ordered and the clerk will 
call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Nevada (Mr. 
Cannon), the Senator from Idaho (Mr. Church), the Senator from 
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondaie), 
the Senator from New Mexico (Mr. Montoya), the Senator from Cali- 
fornia (Mr. Tunney), the Senator from South Dakota (Mr. 
Abourezk). and the Senator from Illinois (Mr. Stevenson) are neces- 
sarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator 

[S 16260] 

from Montana (Mr. Mansfield), and the Senator from South Dakota 
(Mr. McGovern) are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), and the Senator from Arizona (Mr. Gold- 
water) are necessarily absent, 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 78, nays 3, as follows : 

[Rollcall Vote No. 617 Leg.] 
YEAS — 78 



Allen 


Durkin 


Inouye 


Bartlett 


Eagleton 


Jackson 


Bayh 


Eastland 


Javits 


Bellmon 


Fannin 


Johnston 


Bentsen 


Fong 


Kennedy 


Brooke 


Garn 


Laxalt 


Bumpers 


Gravel 


Leahy 


Burdick 


Griffin 


Long 


Byrd, Harry F., Jr. 


Hansen 


Magnuson 


Byrd. Robert C. 


Hart, Gary 


Mathias 


Ca se 


Haskell 


McCiellan 


Chiles 


Hatfield 


McClure 


Clark 


Hathaway 


Mclntyre 


Cranston 


Helms 


Morgan 


Culver 


Hollings 


Moss 


Curtis 


Hruska 


Muskie 


Dole 


Huddleston 


NeJ '-•on 


Domenici 


Humphrey 


Xunn 



42 



YEAS — 7S — Continued 



Packwood 

Pa store 

Pearson 

i\ 11 

Percy 

Proxmire 

Randolph 

Ribicofl 

Both 



Schwelker 
Scott, Hugh 
Scott, 



William l. 

Spar km an 
Stafford 
Stenni.s 
si evens 
Stone 



Talmadge 
Thuimond 
Tower 



Symington 
Taft 



Williams 
Young 



NAYS— 3 



Biden 



Metcalf 



Weicker 



NOT VOTING— 19 



Ahourezk 

Baker 

Beall 

Brock 

Buckley 

( 'annon 

Church 



Ford 

Glenn 

Goldwater 

Hart, Philip A. 

Hartke 

Mans-field 

McGee 



McGovern 

Mondale 

Montoya 

Stevenson 

Tunnoy 



So the motion was agreed to. 

The Presiding Officer. With the addition of Senators voting who 
did not answer the quorum calh a quorum is present. 

Several Senators addressed the Chair. 

The Presiding Officer. The Senator from Maryland. 

Mr. Foxg. Mr. President, will the Senator yield to me for a unan- 
imous-consent request ? 

Mr. Matiitas. Mr. President, I ask unanimous consent that I may 
yield to the Senator from Hawaii for a unanimous-consent request. 

M r. Allen. I object. 

Mr. Foxg. I ask unanimous consent 

The Presiding Officer. Objection is heard. The Senator from Mary- 
land has the floor. 

Mr. Matiitas. The administration has taken a position strongly op- 
posed to the Helms amendment. As the sponsor of the amendment 
has explained, the language is substantially similar to S. 2871. 

The Department of Justice has commented at length on S. 2871 and 
T think it would be useful to acquaint the Senate with the opinion set 
forth in a letter addressed to the chairman of the Committee on the 
Judiciary under date of September 20, 1976. 

I ask unanimous consent to include a copy of that letter at the con- 
clusion of my remarks. 

There being no objection, the letter was ordered to be printed in the 
Record, as follows : 



Hon. .Tamer O. Eastland. 
Chairman, Committee on the Judiciary, 
U.S. Senate, Washington. D.C. 

Pear Mr. CHAIRMAN : This is in response to your reouest for the views of the 
Department of Justice on S. 2K71, a bill, "To provide for equal access to courts 
in lawsuits Involving the Federal Government, and for other purposes". 

The bill amends Sections 2412, 2517. and ?CuR of TirV 2S. Fnirod States Code. 
The bill also adds now Sections. 504 to Title 5, and 3013 to Title 18, United States 
Pnde. This proposed legislation would substantially alter and enlarge recover- 



Depabtment of Justice. 
Washington, B.C., September 20. 1916. 



43 



able items in "a judgment for costs" in actions by or against the United States, 
or any agency or official thereof, to any non-governinental party who prevails in 
whole or in part. Allowable costs would include : 'the reasonable expenses of any 
witnesses or expert witnesses,", "the reasonable cost of any studies, analyses, 
engineering reports, tests or projects which the court finds necessary to litiga- 
tion of the action", and "a reasonable attorney fee ... at prevailing rates for 
such services, including any reasonable risk factor component." Similar recovery 
is provided for in criminal actions and certain agency proceedings. 

An award of attorneys' fees against the United States, or any agency or official 
thereof, absent "Congressional authorization", is expressly precluded under exist- 
ing law. 28 U.S.C. 2412. See Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 
240 (1975) : Pyramid Lake Paiute Trite of Indians v. Morton, 163 U.S. App. D.C. 
90, 499 F. 2d 1095 (1974), cert, denied, 420 U.S. 962. Traditionally, American 
courts have, for the most part, resisted the inclusion of attorneys' fees and other 
Urinative expenses in costs taxed against the losing party See Fleischmann v. 
Maier Brewing Co., 386 U.S. 714 (1967). It is the view of the Justice Depart- 
ment that the American rule should continue to be the prevailing standard, 
with exceptions limited to specific areas, carefully identified and considered, where 
strong public policy reasons indicate the appropriateness of the exceptions. The 
bill, however, does not address specific areas where such exceptions might be 
warranted. Instead, the proposed legislation would encompass all civil litigation 
(as well as criminal actions and certain administrative orders). While the Jus- 
tice Department is not primarily concerned with administrative proceedings and 
the awarding of attorneys' fees and other costs in such proceedings, we express 
our objection on the broadness of the proposed statute. 

The bill's provisions run contrary to its preamble. Finding "serious inequities" 
in providing "for equal access to courts in lawsuits involving the Federal Govern- 
ment", the bill does not distinguish between the categories of litigants engaged in 
suits involving the Federal Government. Indeed, this proposed legislation would 
allow for recovery of attorneys' fees and other expenses where such disparity is 
presumably absent, e.g., suits brought by or against "companies, unions, other 
organizations and State and local governments." Beyond the obvious drain on the 
Treasury, the bill also threatens to encourage litigation involving the Govern- 
ment when the Executive and the Judiciary are currently tasked with substan- 
tially increased caseloads. 

A further major concern is the provision in section 7 of the bill for the award- 
ing of attorney fees and costs to defendants in certain criminal cases. When a 
criminal trial or appeal results in a defendant being found not guilty or in the 
charges being dismissed, the bill provides that the court shall award to the de- 
fendant ". . . reasonable attorney fees and costs incurred by him in his defense . . .". 
A finding of not guilty at trial, the setting asde of a guilty finding on appeal, or 
dismissal of the charges may occur for many reasons other than lack of guilt on 
the part of the defendant. To compensate the defendant in all such cases repre- 
sents a radical departure from the long standing current practice. We are not 
aware of any justification for placing this burden on the Government. There are. 
of course, adequate provisions in current law for providing for attorneys and at- 
tendant costs when the defendant is financially unable to meet such expenses. 

The Department of Justice therefore recommends against enactment of this 
legislation. 

The Office of Management and Budget has advised that there is no objection to 
the submission of this report from the standpoint of the Administration's 
program. 

Sincerely, 

Michael M. Uhlmanx, 
Assistant Attorney General. 

Mr. Mathias. Mr. President, I move to lay the pending amendment 
on the table. 

Mr. Robert C. Byrd. Mr. President. I ask for the yeas and nays. 
Mr. Helms. Yeas and nays, Mr. President. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer (Mr. Hatfield). The question is on agree- 
ing to the motion to lay on the table the amendment of the Senator 



44 



from North Carolina (Mr. Helms). On this question, the yeas and 
Days have been ordered, and the clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. 1 announce that the Senator from Nevada (Mr. 
Gannon), the Senator from Idaho (Mr. Church), the Senator from 
Kentucky (Mr, Ford), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale ), 
the Senator from New Mexico (Mr. Montoya), and the Senator from 
( )a 1 i fornia (Mr. Tunney ) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

Mr. Griffix. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Goldwater), and the Senator from Ohio 
(Mr. Taft) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

[S 16261] 

The result was announced — yeas 54, nays 27, as follows : 

[Rolcall Vote No. 618 Leg.] 



YEAS— 54 



Abourezk 


Haskell 


Pearson 


Bayh 


Hatfield 


Pell 


Bentsen 


Hathaway 


Percy 


Biden 


Hollings 


Proxmire 


Brooke 


Huddleston 


Randolph 


Bumpers 


Humphrey 


Ribicoff 


Burdick 


Inouye 


Schweiker 


Byrd, Robert C. 


Jackson 


Scott, Hugh 


Case 


Javits 


Scott, 


Chiles 


Johnston 


William L. 


Clark 


Kennedy 


Stafford 


Cranston 


Leahy 


Stevens 


Culver 


Magnuson 


Stevenson 


Durkin 


Mathias 


Stone 


Eagleton 


Mclntyre 


Symington 


Fong 


Moss 


Weicker 


Gravel 


Muskie 


Williams 


Griffin 


Nelson 




Hart, Gary 


Pastore 






NAYS— 27 




Allen 


Hanson 


Packwood 


Bartlett 


Helms 


Roth 


Bellmen 


Hruska 


Sparkman 


Byrd. 


Lnxalt 


Stennis 


Harry F., Jr 


Lout 


Talmadge 


Cnrfis 


MdClellan 


Thurmond 


Domenici 


McClure 


Tower 


Eastland 


Metcalf 


Young 


Fannin 


Morgan 




Garn 


Nunri 





45 



Baker 

Beall 

Brock 

Buckley 

Cannon 

Cliurch 

Dole 



NOT VOTING— 19 

Ford McGovern 

Glenn Alondale 

Goldwater Montoya 

Hart, Philip A. Taft 

Hartke Tunney 
Mansfield 
McGee 



So the motion to lav on the table was agreed to. 



UP AMENDMENT NO. 741 



Mr. Allen. Mr. President, I offer an amendment and ask that it be 
stated. 

The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) proposes an unprinted amendment 
numbered 471 : 

On line 6 after the comma following the word statutes add the following: 
"title IX of Public Law 92-318." 

Mr. Allen. Mr. President, this amendment would put into eifect 
the stated purpose of the substitute offered by the distinguished Sena- 
tor from Massachusetts, and it would add title IX — that is, enforce- 
ment of rights under that — as an area calling for the payment of 
attorney's fees where action is brought to enforce those rights. 

If the bill is to be passed, there is no reason why it should not contain 
this; but it is not necessar}' to offer a substitute which would cut off all 
other amendments. So this amendment would bring title IX under the 
provisions of the bill and would make unnecessary, and possibly out of 
order, the amendment of the Senator from Massachusetts. It would 
allow other amendments to be offered to the bill itself. 

On this amendment, I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is not 
a sufficient second. 

Mr. Mathias. Mr. President, will the Senator from Alabama yield ? 

Mr. Allen. I yield. 

Mr. Mathias. As I understand the Senators amendment, it would be 
to add on line 6, after the comma, at the end of the line, the words 
"title IX." 

Mr. Allen. That is correct ; yes. 

Mr. Mathias. Is this an amendment to the bill or to the pending 
amendment ? 

Mr. Allen. It is an amendment to the bill. It would make unneces- 
sary the Kennedy substitute. This puts into effect the thrust of the 
substitute of the distinguished Senator from Massachusetts. In other 
words, it is not only the Civil Rights Act referred to in the bill. This 
would add the title IX provisions as well. 

Mr. Mathias. I understand. I thought originally that the amend- 
ment went to the amendment of the Senator from Massachusetts. 

Mr. Allen. No. 

Mr. Mathias. Would it not be necessary to dispose of the amend- 
ment of the Senator from Massachusetts before we undertook 



46 



Mr. Allen. No, because if the amendment of the Senator from 
Massachusetts is adopted, no further amendment will be in order. That 
would not quite serve the public interest. 

M r. President, I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 

The } r eas and mays were ordered. 

Mr. Ma i i n as. Mr. President, I make the point of order that a quorum 
is not present. 

The Presiding Officer. The clerk will call the roll to ascertain the 
presence of a quorum. 

The second assistant legislative clerk called the roll. 

Mr. Mathias. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded. 

Mr. Allen. Objection. 

The Presiding Officer. Objection is heard. 

The second assistant legislative clerk resumed the call of the roll 
and the following Senators entered the Chamber and answered to their 
names : 

[Quorum No. 44 Leg.] 



Abourezk 


Hart, Gary 


Moss 


Allen 


Haskell 


Nunn 


Birlen 


Hatfield 


Pearson 


iSrooke 


Helms 


Schweiker 


Bumpers 


Huddleston 


Scott, William L. 


Burdick 


Jackson 


Sparkman 


Byrd, Robert C. 


.Favits 


Stevens 


Case 


Kennedy 


Stone 


Chiles 


Laxalt 


Symington 


Culver 


Leahy 


Talmadge 


Dark in 


Magnuson 


Thurmond 


Gam 


Mathias 


Williams 


Gravel 


Mclntyre 


Young 


Griffin 


Metcalf 




Hansen 


Morgan 





The Presiding Officer. A quorum is not present. The clerk will 
call the names of the absentees. 

The second assistant legislative clerk resumed the call of the roll. 

Mr. Allen. Mr. President, I move that the Sergeant at Arms be 
directed to request the attendance of absent Senators, and I call for 
the yeas and nays. 

The Presiding Officer (Mr. Laxalt). Is there a sufficient second? 
There is a sufficient second. 

The yeas and naj^s were ordered. 

The Presiding Officer. The question is on agreeing to the motion of 
the Senator from Alabama. The yeas and nays have been ordered, and 
the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Nevada (Mr. 
Cannon), the Senator from Idaho (Mr. Church), the Senator from 
Kentucky (Mr. Ford), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale), 
the Senator from New Mexico (Mr. Montoya), the Senator from 
California (Mr. Tunney) , the Senator from Louisiana (Mr. Johnston) , 



47 



the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Illinois (Mr. Stevenson), and the Senator from Colorado (Mr. Gary 
Hart) are necessarily absent. 

I further announce that the Senator from Montana (Mr. Mans- 
field), the Senator from South Dakota (Mr. McGovern), and the 
Senator from Ohio (Mr. Glenn) are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley) , the Senator from Arizona (Mr. Goldwater) , 
the Senator from Nebraska (Mr. Hruska) , and the Senator from Ohio 
(Mr. Taft) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 74, nays 3, as follows : 



[Rollcall Vote No. 619 Leg.] 



YEAS— 74 



Abourezk 

Allen 

Bayh 

Bellmon 

Bentsen 

Brooke 

Bumpers 

Burdick 

Byrd, Harry F., Jr. 

Byrd, Robert C. 

Case 

Chiles 

Clark 

Cranston 

Culver 

Curtis 

Dole 

Domenici 

Durkin 

Eagleton 

Eastland 

Fannin 

Fong 

Garn 

Gravel 



Griffin 

Hansen 

Haskell 

Hatfield 

Hathaway 

Helms 

Rollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Laxalt 

Leahy 

Long 

Magnuson 

Mathias 

McClellan 

McClure 

Mclntyre 

Metcalf 

Morgan 

Moss 

Muskie 

Nelson 



Nunn 

Packwood 

Fastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Scott, William L. 

Sparkman 

Stafford 

S tennis 

Stevens 

Stone 

Symington 

Talmadge 

Thurmond 

Tower 

Williams 

Young 



NAYS— 3 



Bartlett 



Biden 



Weicker 



NOT VOTING— 23 



Baker Goldwater 

Beall Hart, Gary 

Brock Hart, Philip A. 

Buckley Hartke 

Cannon Hruska 

Church Johnston 

Ford Kennedy 

Glenn Mansfield 



McGee 

McGovern 

Mondale 

Montoya 

Stevenson 

Taft 

Tunney 



So the motion was agreed to. 



The Presiding Officer. A quorum is present. 



79-586— 77 5 



48 



[S 16262] 

Several Senators addressed the Chair. 

The PhESHWNG 0**icm The Senator from Alabama. 

Mr. Au.r.x. Mr. President, I have not had the opportunity to ex- 
plain this amendment. I am pleased that the Chair saw fit to recognize 
me rather than the distinguished Senator from Maryland because I 
do not believe there has been an opportunity to explain the amendment. 

What the amendment does is to add to the original bill reported by 
the committee the words "title IX of Public Law 92-318." 

What the bill does is to provide that in any proceeding under cer- 
tain sections of the revised statutes — and it lists the sections, sections 
L977, L978, 1980, 1081, of the revised statutes, these having no refer- 
ence to a year— the court may. in its discretion, allow the prevailing 
party, other than the United States, a reasonable attorney fee as part 
of the cost. 

What this amendment does is to add title IX of Public Law 92- 
3 1 8 as one of the sections, one of the provisions of law, where an action 
van be brought and the prevailing party would, in the discretion of the 
court, be allowed attorney fees. In other words, it adds a section to the 
civil rights section. 

This is a different approach from the substitute of the distinguished 
Senator from Massachusetts (Mr. Kennedy). His substitute would do 
the same thing, but it would be a substitute and not a simple amend- 
ment. 

If his substitute is adopted, then no further amendments can be 
offered to the bill. I feel sure that other amendments will be offered. 
Senator Helms and I have an amendment at the desk that would make 
this same rule apply on the court in its discretion allowing attorney 
fees to the prevailing party in cases where the IRS brings an action 
against a person, charging the existence of tax liability to the Govern- 
ment on the part of that person, and the result of the action is found 
in favor of the person being sued or harassed by the IRS in the 
judgment. 

Then in the judgment of the court and in the discretion of the court 
attorney fees could be added to the prevailing party. 

That is a very fine amendment. In the opinion of the Senator from 
Alabama, and one that should be added to this bill. With the long arm 
of the Federal Government reaching out against our citizens and 
charging income tax liability, if it develops on the trial of the case that 
there is no liability, or that the action was frivolous, then under my and 
Senator Helms' amendment the court, in its discretion, could allow 
attorney fees to the citizen who has been harassed by the Government. 

That is not a farfetched situation. We see instances where suits by 
IRS or the Treasury Department, as the case might be — and the terms 
can be used interchangeably, I assume — have brought actions against 
oil izens who owed no tax, as it developed, but they may well have been 
impoverished by defending against an action of the' Government in 
this matter. 

The amendment that we hope to offer would allow attorney fees 
to this citizen who may have been harassed bv the Government. 

1 E the Kennedy substitute is adopted, then there will be no oppor- 
tunity to offer amendments. On the other hand, Mr. President, if the 



49 



pending amendment of the Senator from Alabama is adopted, it does 
say that in sex discrimination cases, title 9 cases, where an action is 
brought to assert the rights of a citizen under this title, in addition 
to the civil rights section, attorney fees could be added to the prevail- 
ing side. 

The distinguished Senator from Massachusetts pointed out that to 
do this was something that the administration approved, that it was 
suppored by the administration. I called to the attention of my col- 
leagues at the time that I was delighted to see the distinguished 
Senator from Massachusetts acting as floor leader for the administra- 
tion, pushing this concept. 

When I speak of the distinguished Senator from Massachusetts, I 
have reference to the distinguished senior Senator from Massachusetts. 
I see the distinguished junior Senator from Massachusetts (Mr. 
Brooke) in the Chamber. 

All my amendment would do would be to put into the bill as an 
amendment, allowing still further amendments to the bill, the thrust 
of the Kennedy substitute. The Kennedy substitute would cut off all 
further amendments. 

Mr. President, I am not going to speak unduly long on this amend- 
ment. May I inquire of the Chair if the yeas and nays have been 
ordered on the Kennedy substitute ? 

The Presiding Officer. The yeas and nays have not been ordered 
on the Kennedy substitute. 

Mr. Allen. I ask unanimous consent that it might be in order at 
the conclusion of my remarks that I might request the yeas and nays 
on the Kennedy substitute and on my own amendment. 

The Presiding Officer. Is there objection? 

Mr. Robert C. Btrd. Mr. President, reserving the right to object, the 
distinguished Senator has not consented to any request today on the 
part of others. 

Mr. Allen. I appreciate the Senator's calling my attention to that. 

I appreciate his calling that to my attention. I would hate to estab- 
lish a precedent to make a request for myself that I am denying to 
other Senators. I will wait until the proper time to make that request. 

The Presiding Officer. The Senator is advised that unanimous 
consent has already been obtained with regard to his own amend- 
ment, the request for the yeas and nays. 

Mr. Allen. I withdraw the unanimous-consent request on the other. 

That being true, Mr. President, the issue which is before the Senate, 
as put into effect by the amendment of the Senator from Alabama, is 
shall the right to be free from sex discrimination as guaranteed by title 
IX be protected to the extent of giving the court the authority in its 
discretion to grant attorney fees in an action under that section to 
assert such rights to the prevailing side % 

Mr. President, I yield the floor. 

Mr. Brooke. Mr. President, I move to lay on the table the amend- 
ment of the distinguished Senator from Alabama. 
Mr. Allen. I call the yeas and naj^s. 

The Presiding Officer. Is there a sufficient second? There is not 
a sufficient second. 

Mr. Brooke. Mr. President, I suggest the absence of a quorum. 



50 



The Presiding Officer. The clerk will call the roll. 

Mr. Robert C. Byrd. Mr. President, I ask for the yeas and nays. 

Mr. Allen. Had not the quorum call started? I request that the 
Chair continue the quorum call. Mr. President, the quorum call had 
started. 

The Presiding Oeficer. The Senator is correct, it had started. 
The clerk will continue calling the roll. 

The second assistant legislative clerk proceeded to call the roll. 
Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded. 
Mr. Allen. I object. 

The Presiding Officer. Objection is heard. 

The rollcall was resumed and concluded and the following Sena- 
tors answered to their names : 

[Quorum No. 45 Leg.] 

Allen Haskell Nelson 

Bayh Helms Pearson 

Brooke Inouye Percy 

Burdiek Jackson Randolph 

Byrd, Robert C. Kennedy Ribicoff 

Chiles Laxalt Scott, Hugh 

Griffin Leahy Stone 

Hart, Gary Magnuson 

Mr. Robert C. Byrd. Mr. President, I move that the Sergeant at 
Arms be directed to request the attendance of absent Senators, and I 
ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

Mr. Allen. Mr. President, I move to lay on the table the motion to 
direct the Sergeant at Arms, and I call for the yeas and nays. 

The Presiding Officer. The motion is not in order. 

The question is on agreeing to the motion of the Senator from West 
Virginia that the Sergeant at Arms be directed to request the attend- 
ance of absent Senators. The yeas and nays have been ordered, and 
the clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from Nevada (Mr. Cannon), the Senator 
from Idaho (Mr. Church), the Senator from Kentucky (Mr. Ford), 
the Senator from Michigan (Mr. Philip A. Hart) , the Senator from 
Indiana (Mr. Hartke), the Senator from Louisiana (Mr. Johnston), 
the Senator from Wyoming (Mr. McGee), the Senator from Montana 
(Mr. Metcalf), the Senator from Minnesota (Mr. Mondale), 

[S 16263] 

the Senator from New Mexico (Mr. Montoya), the Senator from 
Illinois (Mr. Stevenson), and the Senator from Missouri (Mr. Sym- 
ington), and the Senator from California (Mr. Tunney) are neces- 
sarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 



51 



Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Goldwater), the Senator from Ohio (Mr. 
Taft), and the Senator from North Dakota (Mr. Young) are neces- 
sarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 72, nays 3, as follows : 

[Rollcall Vote No. 620 Leg.] 



YEAS— 72 



Abourezk 


Hansen 


Muskie 


Allen 


Hart, Gary 


Nelson 


Bellmon 


Haskell 


Nunn 


Bentsen 


Hatfield 


Packwood 


Brooke 


Hathaway 


Pastore 




TT a1 m cj 

JLJL " 1 111 o 




Burdick 


Hollings 


Pell 


±>yra, Marry ±., Jr. 


Hruska 


Percy 


Byrd, Robert C. 


Huddleston 


Proxmire 


Case 


Humphrey 


Randolph 


Chiles 


Inouye 


Ribicoff 


Clark 


Jackson 


Roth 


Cranston 


Javits 


Schweiker 


Culver 


Kennedy 


Scott, Hugh 


Curtis 


Laxalt 


Scott, William L 


Domenici 


Leahy 


Srvn firm n ti 


Durkin 


Long 


Stafford 


Kasrlpton 


"VTp PTm^nn 


O LCI 1 1 HO 


Eastland 


Mathias 


Stevens 


Fannin 


McClellan 


Stone 


Fong 


McClure 


Talmadge 


Garn 


Mclntyre 


Thurmond 


Gravel 


Morgan 


Tower 


Griffin 


Moss 


Williams 




NAYS — 3 




Bartlett 


Biden 


Weicker 




NOT VOTING— 25 




Baker 


Glenn 


Mondale 


Bayh 


Goldwater 


Montoya 


Beall 


Hart, Philip A. 


Stevenson 


Brock 


Hartke 


Symington 


Buckley 


Johnston 


Taft 


Cannon 


Mansfield 


Tunney 


Church 


McGee 


Young 


Dole 


McGovern 




Ford 


Metcalf 





So the motion was agreed to. 

The Presiding Officer. A quorum is present. 

Mr. Robert C. Byrd. Mr. President, I ask for the yeas and nays on 
the motion to table the Allen amendment. 

The Presuming Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 



The Presiding Officer. The question is on agreeing to the motion 
of the Senator from Massachusetts. On this question the yeas and nays 
have been ordered, and t tie clerk will call the roll. 

The assistant legislat ive clerk called the roll. 

Mr. Robert C. Byrd. T announce that the Senator from Nevada 
(Mr, Cannon), the Senator from Idaho (Mr. Church), the Senator 
from Kentucky ( Mr. Ford), the Senator from Michigan (Mr. Philip 
A. Harl ). the Senator from Indiana (Mr. Hartke), the Senator from 
Louisiana (Mr. Johnston), the Senator from Wyoming (Mr. McGee), 
the Senator from California (Mr. Tunney), the Senator from Indiana 
(Mr. Bayh), the Senator from Minnesota (Mr. Mondale),the Senator 
from New Mexico (Mr. Montoya), and the Senator from West Vir- 
ginia i Mr. Randolph) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakot a ( Mr. McGovcrn) are absent on official business. 

I further announce that, if present and voting, the Senator from 
West Virginia (Mr. Randolph) would vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall). the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Gold water), and the Senator from Ohio 
(Mr. Tafr ) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 54, nays 24, as follows : 



[Rollcall Vote No. 621 Leg.] 



YEAS— 54 



Abourezk 

Bellmon 

Bentsen 

Biclen 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Chiles 

Clark 

Cranston 

Culver 

Durkin 

Eagleton 

Foil?: 

Gravel 

Griffin 

Harl. Gary 



Haskell 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

.Tavits 

Kennedy 

I>ahy 

Magnuson 

Mathias 

Mclntyre 

Moss 

Muskie 

Nelson 

Packwood 

Pastore 



Pearson 

Pell 

Percy 

Proxmire 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Scott, William L. 

Stafford 

Stevens 

Stevenson 

Stone 

Symington 

Weicker 

Williams 



NAYS— 24 



Allen 

P, art left 

Byrd, Harry F., 

Curtis 

I >omenici 

Eastland 

Fannin 

Garn 



Jr. 



McClellan 



Hansen 

Helms 

Hruska 

Eaxalt 

Long 



McClure 
Metoalf 



Morgan 

Nunn 

Sparkman 

Stennis 

Talmadge 

Thurmond 

Tower 

Young 



53 



NOT VOTING— 22 



Baker 
Bayh 
Beall 
Brock 



Ford 

Glenn 

Gold water 

Hart, Philip A. 

Hartke 

Johnston 

Mansfield 

McGee 



McGovern 



Buckley 
Cannon 
Church 

Dole 



Mondale 
Montoya 
Randolph 
Taft 



Tunney 



So the motion to lay on the table was agreed to. 

Mr. Robert C. Byrd. Mr. President, am I recognized ? I am recog- 
nized, am I not ? 

The Presiding Officer (Mr. Culver). The Senator is recognized. 



Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the Committee on the Judiciary be authorized to meet on September 
22 to consider committee business ; that the Subcommittee on Environ- 
ment and Land Resources of the Committee on Interior and Insular 
Affairs be authorized to meet on September 22 to consider the Forest 
Service's performance in the preparation of the plan for the East 
River Unit of the Gunnison River National Forest in Colorado ; that 
the Subcommittee on Labor of the Committee on Labor and Public 
Welfare be authorized to meet on September 27 on the Occupational 
Safety and Health Act; and that the Permanent Subcommittee on 
Investigations of the Committee on Government Operations be author- 
ized to meet on September 29 and 30 to examine HEW's Medicaid Man- 
agement Information System. 

Mr. Allen. I object. 

The Presiding Officer. Objection is heard. 



Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
on tomorrow, after the orders for the recognition of Senators that have 
already been entered, the following orders be entered : Mr. Muskie 10 
minutes, Mr. Proxmire 10 minutes, Mr. Kennedy 10 minutes, and Mr. 
Hathaway. 

The Presiding Officer. Is there objection ? 

Mr. Allen. Reserving the right to object, Mr. President, I have 
notified the distinguished assistant majority leader since we are on 
this bill I feel like we ought to stay on it until we get through. I have 
stated that I will object to unanimous-consent requests until the bill 
has been disposed of and, therefore, I object. 

The Presiding Officer. Objection is heard. 



Request To Proceed for iy 2 Hours ox S. 2925 Tomorrow 

Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
on tomorrow, after the orders for recognition of Senators have been 



Request for Committee Meetings 



Request for Special Orders Tomorrow 



54 



completed, and with the understanding that there will be no action 
on t he bill, the Senate proceed for not to exceed 1 hour and 30 minutes 
on S. 2925, the sunset legislation, with the understanding that there be 
no action on the bill, and it will be set aside at the expiration of iy 2 
hours. 

The Presiding Officer. Is there objection? 

Mr. Allen. Reserving the right to object, until the question of 

germaneness is disposed of 

The Presiding Officer. Is there objection ? 

Mr. Robert C. Byrd. Mr. President, there is no problem with ger- 
maneness at this particular time. 
Mr. Allen. I object. 

The Presiding Officer. Objection is heard. 

[S 16267] 

[During the debate on the District of Columbia appropriations con- 
ference report:] 

Mr. Allen addressed the Chair. 

The Presiding Officer. The Senator from Alabama. 

Mr. Allen. Mr. President, I am for the motion to concur in the 
House amendments. I believe that is the motion, that we concur in 
the House amendments and adopt the conference report. 

CIVIL RIGHTS ATTORNEYS' FEES AWARD ACT 

( At this point Mr. Culver assumed the chair.) 

I do feel that inasmuch as the Senate has moved to proceed to the 
attorney fee bill, that matter should be disposed of before other mat- 
ters are disposed of. I feel that that bill needs to be discussed a little 
bit more because we have been having too many quorum calls, too many 
rollcalls, and not enough debate. 

I am delighted that we have a sufficient number of Senators here to 
hear some of this debate. I hope they will stay around for a while and 
listen to some of this debate because this is an important bill. 

It is a bill that the leadership has set great store by because it has 
moved to proceed to this measure. That motion was made at a time in 
the proceedings when it would not be debatable — a motion to pro- 
ceed. There was no debate on that motion, none permitted under the 
rules. That is perfectly all right. 

Of course, it was built up that way, so that there would be no debate 
on that, No business was laid down at the end of the session yesterday, 
so even if the motion had been made and dilatory tactics used— and I 
hope that would never occur — but had they been used and carried the 
matter beyond 2 hours after the convening of the Senate, the motion 
to proceed would still have been nondebatable. 

This is about the only time we are going to have to debate this im- 
portant issue. It is important, Mr. President, because it is putting the 
Senate in a position of, apparently, being more interested in taking 
rare of our friends in the legal profession than most anything else 
that we have been concerned with. 

The big hassle over the antitrust bill was the matter involving at- 
torney's fees — the matter of State attorneys general throughout the 
country having the right to farm out these antitrust actions to a fa- 



55 



vored few among the lawyers — and a matter of contingency fees. We 
were very careful here in the Senate to leave a great big loophole 
whereby contingency fees could be permitted. 

So we have tried again and again to take care of the attorneys. 

I am a member of the legal profession, but I do not practice law. 
I have great respect for the legal profession. I want to see them make 
fees. I want to see lawyers well compensated. But I do not think that 
should be a primary concern here in the U.S. Senate — and all too often 
it is. 

While the distinguished Senator from Massachusetts (Mr. Ken- 
nedy) — I say that to identify him further because I see the distin- 
guished junior Senator from Massachusetts here — has a bill (S. 2715) 
scheduled to be brought up. 

What does it provide? It takes care of the attorneys. Of course, it 
does. It provides that in agency proceedings — and we have them by 
the thousands — attorney's fees may be allowed. Out of the taxpayer's 
pocket. Not out of the litigant's. Out of the taxpayer's pocket. 
That is what we are faced with here this evening. 
As I say, I have absolutely no objection to the conference report. I 
hope it will be passed unanimously. To show that I was not trying 
to resort to dilatory tactics, even though the assistant majority leader 
was calling for the yeas and nays on motion to proceed. I had no 
desire to have a rollcall and kill time. I thought we ought to get on 
with the debate, get on with this measure that the leadership is plac- 
ing above all other bills on the calendar. 

Is this a matter of making provision for civil right? Xo. Xot one 
single civil right is enunciated in this bill. Not one single civil right 
is protected in this bill. 

While we are considering the bill and proceeding like sheep to 
vote for it, let us see what we are voting for. 

A very fine amendment, in my judgment, was turned down by the 
Senate just a moment ago. This amendment, apparently, the dis- 
tinguished Senator from Massachusetts (Mr. Kennedy) favored be- 
cause he has a substitute that does nothing but put that amendment 
in. But he went a circuitous route on it. 

He did not go the simple route of merely a very few words. Let us 
see how many words it would have taken. It would have taken seven 
words. In seven words he could have carried into effect what his 
substitute does. 

I do not believe there would have been a great deal of opposition 
to it. But instead of adding these seven words to the bill by amend- 
ment, putting title IX, the antisex discrimination provision, under 
this same bill and providing that attorney's fees could be paid to the 
prevailing side where an action is brought to protect the rights guar- 
anteed by this section — instead of merely putting those words as an 
amendment to the Tunney bill — I might say I have an amendment a 
little later on to name this bill for the distinguished Senator from 
Massachusetts (Mr. Kennedy) and the distinguished Senator from 
California (Mr. Tunney). I feel they should be honored in that fash- 
ion. This bill should be named for them. 

So somewhere along the line, probably sometime tomorrow, some- 
time by midnight tonight possibly, that amendment will be offered. 

But I have another amendment that I am going to offer before I 



56 



offer that, and I will get to that in a moment. I shall explain the 
amendment that was turned down by the Senate. 

Why i Because the Senate opposed the revision of my amendment ? 
Xo. Because when this bill finally passes it will have in it my amend- 
ment, but it will not be the amendment offered by the Senator from 
Alabama. It will probably be the Kennedy amendment that is going 
to stay there, just like the laws of the Medes and Persians — unchange- 
able, no amendments to be acceptable to it. 

It has this very same provision in it that I sought to offer to the 
bill. The difference between my approach and the approach of the 
Senator from Massachusetts (Mr. Kennedy) was that my amendment 
would permit of other amendments. 

Well, this is a deliberative body. It used to be called the greatest 
deliberative body in the world. I do not suppose anybody would make 
that statement today. 

This is a deliberative body of sorts, and we ought to deliberate on 
these matters and not just ram the bill through without any thought 
of its contents. 

There is too much polarization here in the Senate. At the time an 
amendment is offered there are some four or five Senators in the 
Chamber. Senators stream in in the last 5 minutes of the rollcall period, 
and they say, "Well, whose amendment is it? Who is for it?" 

When it is found that the Senator from Alabama offered the amend- 
ment, immediately it has serious opposition. That is not on its merits, 
Mr. President, because I say eventually the Senate will adopt this 
amendment. Mark my word, it will eventually adopt it — if the matter 
stavs before the Senate. 

I am hopeful, Mr. President, that we will not have something of a 
logjam here of lawyer subsidization bills. I have another bill that seeks 
to call this legislation what it is. It seeks to amend the title by calling 
it the Civil Rights Attorney's Relief Act of 1976. We are going to 
have an opportimity to vote on that, I daresay. 

Had the Kennedy amendment been adopted, being a substitute, the 
possibility of other amendments would have been wiped out. 

Mr. President, my amendment, which was defeated by a large mar- 
gin — I did not bother to look because I knew it would be tabled by the 
distinguished assistant majority leader — would have provided what ? 
It was a simple amendment. 

The bill savs that in anv action or proceeding to enforce a provision 
of section 1977, 1978, 1980, or 1981 of the revised statutes, or title VI 
of the Civil Rights Act of 1964, the court, in its discretion, may allow 
the prevailing party, other than the United States, a reasonable attor- 
ney's fee as part of the cost. 

My amendment would have said we would also put in the provision 
for title 

[S 16268] 

IX that guarantees one and all as to any program that is financed 
directly or indirectly by the Federal Government ; there shall be no sex 
discrimination. 

Well, sometimes there is sex discrimination. Sometimes it is thou oh t 
there is sex discrimination when there is no sex discrimination. But 
these matters can be decided where an action is brought by the person 



57 



who feels aggrieved by some entity that receives support directly or 
indirectly from the Federal Government. They have a right to bring 
action against the offending employer, the offending agency, or the 
offending entity. 

Without my amendment, Mr. President, such a person seeking to 
strike down the discrimination against her or against him would have 
to pay his or her own attorney fee, whereas those who sue on other civil 
rights actions would, under the bill, have their attorney fee paid. 

Mr. President, come to think of it, it looks to me as if the Senate, 
in turning down my amendment was guilty of sex discrimination right 
there. We do not have to go out to an outside entity to show sex dis- 
crimination because the Senate has turned down an effort by the Sen- 
ator from Alabama to give those who are aggrieved as a result of sex 
discrimination the same right to have their attorney fees paid as are 
those who are complaining of discrimination under other civil rights 
statutes. 

I wonder if the Senate, in its haste to table this amendment, realizes 
what it has done. It may be that the way to reach that would be to 
move to reconsider the vote by which the amendment was tabled so 
that the Senate would have an opportunity to right this little bit of 
discrimination in which those voting to table the amendment of the 
Senator from Alabama have indulged. 

What was wrong with the amendment? Senators went to great 
lengths to table it because it was an amendment of the Senator from 
Alabama. In doing so they refused to give those who are injured 
through sex discrimination an opportunity to have their attorney fees 
paid when they seek redress while giving others feeling aggrieved by 
other civil rights statutes, an opportunity to have their attorney fees 
paid. Maybe we will hear something about that before long when some 
of our lady groups realize what has happened to them here by a vote 
of the Senate. 

I do not see the logic of denying attorney fees in sex discrimination 
cases and providing attorney fees in discrimination by race, color, 
nationality, or religion. 

Why discriminate against the ladies ? That is what the Senate has 
done, those who voted to table. 

The vote was 54 to table, M not to table. Apparently some few 
Senators realized what they were doing and got over on the nay side, 
because that is a little bit more than some of these votes have been 
running — 24 opposition votes. Twenty-four Senators said that attor- 
neys' fees should be allowed to those bringing actions against sex dis- 
crimination to a like extent as attorneys' fees are paid for those bring- 
ing actions for other civil rights discriminations. I would have felt 
that the Senate, having a long record of opposition to sex discrimina- 
tion, would have voted for this amendment. 

If the amendment had been adopted, there would be absolutely no 
necessity for the Kennedy substitute, because that is the only thing 
it does ; it puts in that amendment. Perhaps the Senate is awaiting an 
opportunity to vote on that amendment. But what the Senator from 
Massachusetts said he was trying; to accomplish would have been ac- 
complished by the amendment of the Senator from Alabama. 

Mr. President, we have a number of important measures on the 
calendar. We have a number of important conference reports to take 



58 



up. But in the face of all of that, what is the Senate confronted with? 
A bill to provide for paying attorneys. That is all it is. Not one single 
hit of other substantive matter ; not one single thing other than paying 
attorney's fees. 

By and large, I say that attorneys have a way of taking care of 
themselves and making good fees. I do not believe they need a whole 
lot of protection. They do not need a whole lot of subsidization, Mr. 
President. 

All the Senator from Alabama was trying to do by his amendment 
was put those who are victims of sex discrimination on the same basis 
of those who are victims of other types of discrimination. But the 
Senate has denied this right or this concession to those who are victims 
to sex discrimination. So I assume that no amendment, no matter how 
good, that is offered by the Senator from Alabama — or I daresay the 
Senator from North Carolina (Mr. Helms) , because we are cosponsors 
of some amendments — I doubt that any of those amendments would 
be accepted, no matter how good they are, because they did not think 
of them. An amendment offered by the Senator from Alabama or the 
Senator from North Carolina on this bill would not fare nearly so well 
as an identical amendment offered by those who are sponsors of the 
legislation. That is the reason why I say, Mr. President, that we have 
too much polarization here in the Senate. These measures ought to be 
considered on their merits, not on who offers the amendments. 

I will say, too, Mr. President, that a bill such as this before the 
Senate, which has been singled out from all the bills on the calendar 
to be given the top priority, should not have a substitute adopted, as 
proposed by the Senator from Massachusetts (Mr. Kennedy), that 
would cut off the right of Senators to offer amendments to the bill. 
That is a provision of the rules, Mr. President; and they are followed 
here in the Senate except when the shoe pinches a little bit, and then 
possibh'- there are variations from the rules. I doubt if they will vary 
that. Because once a substitute to a bill is adopted, no more amend- 
ments are in order. So what the Senator from Alabama was trying to 
do was get this amendment adopted without cutting off other amend- 
ments, and that is exactly what would happen now if no further 
debate were held on the amendment of the Senator from Massachu- 
setts, and I am speaking on his amendment at this time. 

So I do not feel that the matter of providing a method by which 
attorneys can bring actions on behalf of clients and assure them of 
collecting an attorney's fee — I do not believe that is the most important 
bill before the U.S. Senate or before the House of Representatives, to 
make provision for a method by which attorneys can be sure of obtain- 
ing fees for their services. 

Mr. President, I was somewhat intrigued by the recital in the com- 
mittee report to the effect that since 1964 every major civil rights law 
passed by Congress has included or has been amended to include one 
or more fee provisions. 

What does that say ? It says that every major civil rights law, and I 
am going to comment on the word "major" in a moment, passed by 
Congress since 1004 has included or has been amended to include one 
or more fee provisions. 

What is the necessity of this bill if every bill passed since 1964 con- 
tains provision for attorneys' fees? What is the need of this bill pro- 



59 



viding for attorneys' fees under certain specified sections of section 
722 of the Kevised Statutes ? 

If in every major civil rights law passed by Congress they have a fee 
provision, it does not seem to me that there should be need for reenact- 
ing such a provision. 

I do not know. I am simply going by what the Judiciary Committee 
that acted on this bill has to say about the bill. I am wondering, Mr. 
President, if the key to the matter is the phrase here that every major 
civil rights law makes provision for attorneys' fees ? 

I am wondering if the sponsors of this legislation, being the ma- 
jority members of the Judiciary Committee, who I imagine were in 
on the writing of this committee report, they feel that these civil 
rights are minor civil rights. They say every major civil rights law 
has a fee provision. So I am wondering if they consider these sections 
minor. Mr. President, I digress a moment. I might say that not one 
single word of explanation has been offered for the need for this bill, 
not one word. They call it up. Senator Kennedy offers his amendment- 
killing substitute, and it would have been passed in a matter of sec- 
onds if there had not been a few Senators who wanted to discuss the 
matter. 

So not one word of explanation has been given about this bill, S. 2278. 
The author of the bill is not even here. That was not necessary. Simply 
call it up and it will pass. What is the use having the author here to 
explain it? 

I do not believe legislation ought to be stampeded through the Senate 
in that fashion. 

I think we need to study these bills a little bit and find out the pur- 
pose of them. Why this great interest in attorneys' fees ? 

The Senator from Alabama on coming to the Senate retired com- 
pletely from the legal profession as an active practitioner, certainly as 
an active practitioner for compensation. He has, a I be- 

[S 16269] 

lieve, filed three amicus curiae briefs for public bodies in his State and 
that had matters pending before the Supreme Court, feeling that such 
talents that he might have were at the disposal of the people of Ala- 
bama, without compensation. 

So I did file these amicus curiae briefs on important legal points 
before the Supreme Court of the United States. That has been the ex- 
tent of the law practice of the Senator from Alabama since he has 
been in the Senate. 

As I say, I have great regard, respect, and love for the legal 
profession. 

Mr. President, I am at a loss to know or to understand what is the 
need for this legislation and what is the reason for the haste at this 
time after delay of some 3 years with respect to this bill. I will give 
a little history of that in a moment. 

Yes, I have great respect for the legal profession. I want to see them 
adequately compensated. The committee report says that every major 
civil rights law that has passed since 1964 has a fee provision in it. 

Now they come along with this and, in the face of this statement 
that all civil rights major civil rights law passed since 1964 have at- 
torneys' fees provisions in them, they bring up this bill. 



60 



Le1 us si mly the history of this hill a little bit, and I got by the com- 
mit tee report, and thai is, in the main, what .1 am relying oil 

The committee report says this very same bill, not the same number, 
because we are in a different Congress, but the very same bill came up 
in a subcommittee of the Judiciary Committee in 1973. That was a 
subcommittee called Subcommittee on Kepresentation of Citizen In- 
terests of the Judicial Committee* Then, Mr. President, there is a 
great big hiatus a ft or t hat paragraph. The subcommittee acted on it, so 
says the report, and then not hing is said about committee action in 1973, 
and nothing is said about committee action in 1974. So what happened 
to it in committee? Did the full committee kill it? What happened 
to it I That is something % believe the Senate needs to know. 

Is the champion of the bill present on the floor? If so, when I get 
through with my remarks I hope he will speak on the matter and tell 
us what happened to this bill in 1973 after the subcommittee ap- 
proved it. 

They do not say the Judiciary Committee approved it. They say the 
subcommittee approved it. 

So, nothing happened to it in 1973. Nothing happened to it in 1974, 
which closed out the 93d Congress and, of course, the bill died as pro- 
vided by law. 

If, Mr. President, it had already been killed by the committee, the 
report is silent. If this was such a good bill back in 1973 and they said 
there were more than 30 witnesses who testified, I make this point : 

I looked at the hearings, and a large number of lawyers came in and 
testified. I do not believe that even one lawyer testified against this 
bill back in 1973. Why would they be expected to do so? It provides 
that they are going to get paid for their services in certain areas — not 
on fighting sex discrimination. The Senate has decided that that could 
not be done. They do not want to do it, at any rate. It provides for at- 
torneys' fees in other areas, but nobody says why it is necessary to 
have this bill, in the face of the fact that the committee report says 
that every major civil rights bill since 1964 has had an attorney's fee 
provision in it. So why is this bill necessary ? 

I w y ish that a champion of the bill, if there be such, would come for- 
ward and explain some of these matters after I have concluded my 
remarks. This would be very interesting to hear as to that. 

They say that in 1975, the provisions of this bill were incorporated 
in a proposed amendment to S. 1279, extending the Voting Eights Act 
of 1905 ; and they reported it as a part of S. 1279 in the 94th Congress, 
back in 1975. They reported it on July 18, 1975. 

Mr. President, that bill never was brought up on the Senate floor. 
So here we have a bill with a hiatus from 1973 to 1976. There is no ex- 
planation of why they wait until now to bring it up. This bill has been 
on the Senate calendar since June 29 of this year — almost 3 months. 
During that time, we had short sessions. 

Mr. Robert C. Bved. Mr. President, will the Senator yield for a 
question only, 

Mr. Aij.en. I yield. 

Mr. Robert C. P>vi?d. Can the Senator state how long he will talk 
on the D.C. appropriations conference report? Senators would like 
to vote on the conference report and go home. 



61 

Mr. Allen. I would be willing to yield for a motion to adjourn or 
recess, right now. 

Mr. Robert C. Byrd. How about a vote on the D.C. appropriations 
conference report now ? 

Mr. Allen. And then adjourn until tomorrow ? 

Mr. Robert C. Byrd. Yes. 

Mr. Allen. At what time ? 

Mr. Robert C. Byrd. Eleven o'clock. 

Mr. Allen. The Senator has made a fine proposal, and I wish he had 
made it earlier. However, there are a few more facts I should like to 
bring into play. The adjournment motion will be made immediately, 
and there will be no more business transacted ? 

Mr. Robert C. Byrd. That is correct. We would like to vote on the 
D.C. appropriations conference report first. 

Mr. Allen. I said at the outset of my remarks that I favored the 
bill. 

Mr. Long. Mr. President, will the Senator yield ? 
Mr. Allen. I yield. 

Mr. Long. I do believe, Mr. President, that the Senator has made 
some very significant points that the Senate would do well to consider 
and think about overnight and during the next day or so, before this 
matter is disposed of. 

In my judgment, this idea of having the Federal Government pay 
everybody who sues somebody can really create havoc with this great 
country of ours. We have had this type situation where we paid law- 
yers to try to get people off the welfare rolls who did not belong there 
and who tried to do something about fraud on our system. 

For example, the Senator from Louisiana has been trying to get the 
Government to prosecute some of these people who are fraudulently 
using other people's social security numbers to obtain improper bene- 
fits. So far as I know, they have not yet made the first successful 
prosecution. They have had thousands of cases and have recom- 
mended only about six to be prosecuted. 

One of those cases involves more than 7,000 violations. That is just 
what the Government has charged the person with. For all we know, 
the person might be guilty of 70,000 violations of using other people's 
social security numbers. The Government is alleging 7,000 violations 
in that particular case. That is what the Government thinks it knows. 
The person might have been committing 10 times that much fraud, 
for all we know. 

In a case in New Orleans, which I think is not at all unusual, 1 per- 
son is on the welfare rolls under 18 names. The Government proceeds 
to pay somebody, in the first instance, to try to protect the people and 
to try to bring this mischief to an end ; and not much is accomplished 
in that respect many times — altogether too little. On the other side, the 
Government is then proceeding to pay the lawyers to defend the 
culprits. 

Mr. Allen. That is the truth. 

Mr. Long. I have contended — and I believe this to be true — that 
nobody but an absolute idiot would pay somebody to sue himself. Yet, 
that is what this Government does — it pays lawyers to sue the Govern- 
ment. If the Government is wrong, it should cease its course of wrong- 



62 



fill conduct, rather than pay a lawyer to sue itself. Think of what is 
waste of Government money it is to pay someone to sue the Govern- 
ment and then pay another lawyer to defend the Government. 

We have just seen this fiasco, which surprised me, but it was voted 
on the revenue sharing bill, to encourage everybody in America to sue 
every little town. Poclunk will be sued, Cripple Creek will be sued, 
Drv Prong will be sued. Every little town in America will be sued, and 
by 'the time they get through spending the money to defend them- 
selves, it may exceed the revenue sharing money— to be sued on any 
sort of basis* that anyone thinks he might be discriminated against 
because of religion or because of age or because of disability or 
whatever. 

As the Senator knows, the amendment on that bill says that if the 
person is successful in the suit, the Government will have to pay him 
an attorney's fee. 

Mr. Allen. That is correct. 

Mr. Long. To encourage the people to sue every little county, every 
little municipality, no matter how small, in the entire United States, 
even if they are getting only $5 of revenue-sharing money. The Gov- 
ernment still can be paying somebody an attorney fee to sue them for 
their entire budget because they are alleged to have discriminated in 
some respects, on four or five different grounds. 

Mr. Allen. That is certainly true. 

[S 16270] 

Mr. Long. I am not contesting one's right to sue, but a great number 
of these cases are not well taken. In fact, I think that most of the 
people who feel sorry for themselves and feel discriminated against 
would do well to reconcile themselves by recognizing that everybody 
has this problem. Everybody feels at one point or another in life that 
he is disappointed : something does not go his way. One would like to 
feel that he is discriminated against, so he wants to go to court and sue 
about it. For the Government to be paying the lawyers to sue people 
and to use every little municipality and then to sue everybody that one 
can think of, on whatever basis, can be a never-ending thing and abso- 
lutely ridiculous. 

People expect us to give them an accounting of their tax money. One 
could say, "Well, the Government only pays when the person is suc- 
cessful in the suit." But the Senator knows that a lot of these cases 
are compromised. So if someone is being sued and wants to get the 
litigation off his back, then, of course, the amount that he would settle 
for would be higher because the plaintiff knows that if he is successful 
in a lawsuit, he can make them pay a lawyer's fee. 

Mr. Allen. That is exactlv right. That is what I am trying to fight. 

Mr. Long. Now, a plaintiff lawyer, starting out just like anyone, 
hoping to make it through a starvation period in the practice of law — 
I can recall those days when I would sue anybody about anything, just 
at the drop of a hat. 

One lawyer stopped me on the street one time to express his outrage 
that T was suing his client and the case was so farfetched. I asked him 
this question : "Did vou have that man as your client before I filed the 
lawsuit against him?' 9 

TTr sa i d, "No, he came to me when you sued him." 



63 



I said, "What are you complaining about? I got you a client by 
filing that lawsuit." 

I am not the only young plaintiff lawyer, I am sure, who stalled out 
practicing by just suing people about anything that somebody might 
want to allege. If I did not have anything better to do, I would go sue 
them. 

Mr. Allen. The Senator did not have any guarantee by the Govern* 
ment that he would be paid an attorney's fee out of the taxpayers' 
pockets ; did he ? 

Mr. Long. I would drive somebody wild, just to be active. A young 
fellow, just starting a law practice, if he did not have anything else 
to do, felt, if he had a client in court, after a while, people would get 
acquainted with the idea that he was around and see him down there. 
They might bring their business to him. It would sort of get a young 
lawyer publicity. Lawyers were not supposed to advertise, but they 
would read your name in the legal news, that sort of thing. So people 
know you are active, that you are around. 

Young people are known to be pretty busy, just stirring up activity 
in their early days as a lawyer. 

Here, the Government would be paying the lawyers' fees and sub* 
jecting people 

Mr. Allen. Stirring up litigation. 

Mr. Long. Theoretically, they do not stir it up, but as a practical 
matter, they do, because if one knows that they make a settlement, this 
is the point of what they would have to pay if they lost the lawsuit, so 
they would have to pay more to settle a nuisance suit, because the 
Government is there to pay the lawyers' fee. 

Mr. Allen. That is true. 

I yield the floor. 

[S 16280] 

Civil Rights Attorneys' Fees Awards Act — S. 22-78 
Amendments Nos. 2348 and 2349 
(Ordered to be printed and to lie on the table.) 

Mr. Allen submitted two amendments intended to be proposed by 
him to amendment No. 2347, proposed to the bill (S. 2278) entitled 
"The Civil Rights Attorneys' Fees Awards Act of 1975". 

[122 Cong. Rec. S 16390 (daily ed. Sept 22, 1976) ] 

Civil Rights Attorneys' Fees Awards Act — S. 2278 

AMENDMENT NO. 2 7 7 8 

(Ordered to be printed and to lie on the table.) 

Mr. Bumpers. Mr. President, I have never believed that the inability 
to pay for an attorney should be an impediment to litigation regarding 
basic civil rights and liberties. Indeed. I believe that a court system 
available only to the wealthy is directly antithetical to the principles 
of a democratic form of government. 

Having said that, I must take issue with one glaring deficiency in 
S. 2278. It does not apply the "shifting fee" principle for the benefit 
of plaintiffs and defendants alike. I direct your attention to page 5 of 
the committee report on this bill and I quote : 

Such "private attorneys general" should not be deterred from bringing good 
faith actions to vindicate the fundamental rights here involved by the prospect 
79-586—77 6 



64 



of having to pa v their opponent's counsel fees should they lose. Richardson v. 
Hotel Corporation of America, 332 F. Supp. 519 (E.D.La. 1971), aff'd, 468 F.2d 
951 i "»t b (Mr. I!>7LM. (A fee award to a defendant's employer, was held unjustified 
whore a claim of racial discrimination, though meritless, was made in good faith.) 
Such a party, if unsuccessful, could he assessed his opponent's fee only where 
it is shown t hat his suit was clearly frivolous, vexatious, or brought for harass- 
ment purposes. United States Steel Corp. v. United States, 385 F. Supp. 346 
(WJD.Pa. 1974), aff'd. (3d Cir. 1975). This bill thus deters frivolous suits by 
authorizing an award of attorneys' fees against a party shown to have litigated 
in "had faith" under t he guise of attempting to enforce the Federal rights created 
by the statutes listed in S. 2278. Similar standards have been followed not only in 
the Civil Rights Act of 1964, but in other statutes providing for attorneys' fees. 

My amendment would eliminate this judicial gloss on the "shifting 
Pee" principle for the purposes of S. 2278. Defendants, in order to avail 
themselves of the principle, would not have to prove that the plantiffs 
acted in bad faith, frivolously, vexatiously, or for harassment pur- 
noses. Federal courts could then award prevailing defendants attor- 
neys fees, paid by the plantiffs, without requiring that prevailing 
defendants satisfy such a stringent burden of proof. 

This is only fair. We should treat both parties in litigation the 
same whether the matter be a civil rights case, unlawful death action, 
or whatever. 

I urge my colleagues to join with me in the adoption of this amend- 
ment and I ask unanimous consent that the text be printed in the 
Record. 

There being no objection, the amendment was ordered to be printed 
in the Record, as follows : 

Amendment No. 2378 

On page 1, line 10, strike out the quotation marks and the period and insert in 
lieu thereof a period and the following : 

"For purposes of this section, a prevailing party who is a defendant in such 
an action or proceeding may be awarded a reasonable attorneys' fee. at the 
Court's discretion, even if such defendant cannot show that the plaintiff bring- 
ing such action or proceeding acted in bad faith, frivolously, vexatiously, or 
for the purpose of harassing such defendant.". 

AMENDMENTS NOS. 237 9 THROUGH 2391 

(Ordered to be printed and to lie on the table.) 

Mr. Allen submitted 13 amendments intended to be proposed bv 
him to the bill (S. 2278) , supra. 

AMENDMENTS NOS. 23 9 2 AND 2 3 93 

(Ordered to be printed and to lie on the table.) 

Mr. Helms submitted two amendments to be proposed to amend- 
ment No. 2347 to the bill (S. 2278) , supra. 

[S 16427] 

Civil Rights Attorneys' Fees Awards Act 

The Presiding Officer*. Under the previous order, the Senate will 
now resume consideration of S. 2278, which will be stated by title. 

The second assistant legislative clerk read as follows : 

A 1*111 (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of 
1075. 



65 



Quorum Call 

Mr. Robert C. Byrd. Mr. President, I suggest the absence of a 
quorum. 

The Presiding Officer. The clerk will call the roll. 
The second assistant legislative clerk proceeded to call the roll. 
Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded. 
Mr. Allen. I object. 

The Presiding Officer. Objection is heard. The Clerk will call the 
roll. 

The second assistant legislative clerk resumed the call of the roll and 
the following Senators entered the Chamber and answered to their 
names : 

[Quorum No. 47 Leg.] 

Allen Helms Thurmond 

Bumpers McClellan Williams 

Byrd, Robert C. Pastore 

Cranston Pearson 

The Presiding Officer. A quorum is not present, the clerk will call 
the names of absent Senators. 

The second assistant legislative clerk resumed the call of the roll. 

Mr. Robert C. Byrd. Mr. President, I move that the Sergeant at 
Arms be directed to request the attendance of absent Senators. 

Mr. Cranston. I ask for the yeas and nays. 

[S 16428] 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from West Virginia. The clerk will call the roll. 
The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Kentucky 
(Mr. Ford), the Senator from Michigan (Mr. Philip A. Hart), the 
Senator from Louisiana (Mr. Johnston), the Senator from Massa- 
chusetts (Mr. Kennedy) , the Senator from Louisiana (Mr. Long) , the 
Senator from Arkansas (Mr. McClellan), the Senator from Wyo- 
ming (Mr. McGee), the Senator from Montana (Mr. Metcalf), the 
Senator from Minnesota (Mr. Mondale) , the Senator from New Mexico 
(Mr. Montoya), the Senator from Georgia (Mr. Talmadge), and the 
Senator from California (Mr. Tunney), are necessarily absent. 

I further announce that the Senator from South Dakota (Mr. Mc- 
Govern), the Senator from Montana (Mr. Mansfield), and the Sen- 
ator from Ohio (Mr. Glenn) , are absent on official business. 

Mr. Griffin. I announce that the Senator from New York (Mr. 
Buckley), the Senator from Nebraska (Mr. Curtis), the Senator from 
Kansas (Mr. Dole), the Senator from Arizona (Mr. Goldwater), the 
Senator from Ohio (Mr. Taft) , the Senator from Texas (Mr. Tower) , 
and the Senator from Connecticut (Mr. Weicker), are necessarily 
absent. 



66 



I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 76, nays 1, as follows: 

[Rollcall Vote No. 624 Leg.] 



YEAS— 76 



Abourezk 


Gain 


Nelson 


Allen 


Gravel 


Nunn 


Bartlett 


Griffin 


Packwood 


Bayh 


Hansen 


Pastore 


Beall 


Hart, Gary 


Pearson 


Bellmon 


Hartke 


Pell 


Bentsen 


Haskell 


Percy 


Brock 


Hatfield 


Proxmire 


Brooke 


Hathaway 


Randolph 


Bumpers 


Helms 


Ribicoff 


Burdick 


Hollings 


Roth 


Byrd, Harry F., Jr. 


Hruska 


Schweiker 


Byrd, Robert C. 


Huddleston 


Scott, Hugh 


Cannon 


Humphrey 


Scott, William L. 


Case 


Inouye 


Sparkman 


Chiles 


Jackson 


Stafford 


Church 


Javits 


Stennis 


Clark 


Laxalt 


Stevens 


Cranston 


Leahy 


Stevenson 


Culver 


Magnuson 


Stone 


Domenici 


Mathias 


Symington 


Durkin 


McClure 


Thurmond 


Eagleton 


Mclntyre 


Williams 


Eastland 


Morgan 


Young 


Fannin 


Moss 




Fong 


Muskie 





NAYS— 1 
Biden 



NOT VOTING— 23 

Baker Johnston Mondale 

Buckley Kennedy Montoya 

Curtis Long Taft 

Dole Mansfield Talmadge 

Ford McClellan Tower 

Glenn McGee Tunney 

Goldwater McGovern Weicker 
Hart, Philip A. Metcalf 

So the motion was agreed to. 

The Presiding Officer (Mr. Gary Hart). A quorum is present. 



CrviL Eights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Eights Attorneys' Fees Awards Act of 1975. 
Mr. Allen addressed the Chair. 



AMENDMENT NO. 23 4 7 



The Presiding Officer. The question is on agreeing to the amend- 
ment of the Senator from Massachusetts. 
Mr. Allen addressed the Chair. 



67 



The Presiding Officer. The Senator from Alabama. 

Mr. Aixen. Mr. President, I have waited in vain for more than a 
day for some sponsor of the legislation to rise in the Senate and explain 
the bill, explain the need for the bill, explain why this bill providing 
for attorney fees in certain actions is so important that it is placed 
ahead of all the important legislation on the calendar of the U.S. Sen- 
ate, explain why this bill guaranteeing attorney fees for lawyers who 
bring civil rights actions is so important that it is placed ahead of im- 
portant legislation pending here in the Senate. 

I was somewhat surprised on yesterday when I offered an amend- 
ment that would provide another area, as long as we were providing 
for attorneys' fees, in which attorney fees would be paid to the pre- 
vailing party. 

That amendment provided that where actions are brought under 
title IX, which is the antisex discrimination section, attorney fees 
would be paid to the prevailing side in such actions. 

The Senate in its wisdom rejected this amendment, apparently 
taking the position that it did not wish to see attorney fees paid where 
actions are brought under the antisex discrimination section. 

I have now, Mr. President, an amendment which I am going to in- 
troduce after I conclude my remarks, and I take this precaution to 
allow me to discuss the amendment without having it tabled without 
discussion. 

The amendment that I propose to present opens up another area in 
which attorney fees shall be paid to a defendant in an action brought 
by the IRS — the Internal Revenue Service, a department of the Treas- 
ury Department — asserting that such person against whom the action 
is brought owes money to the Government under internal revenue laws. 
If in the final determination of the action it is found that the taxpayer 
owes nothing to the Government, or it is found that this action by the 
Government was without merit, or that it was frivolous, then the Gov- 
ernment would be required to pay the attorney fee to the taxpayer as 
to whom it was found that there was no liability of taxes. 

We know all too well the proclivity of the IRS to harass taxpayers 
throughout the country. It is only right, Mr. President, that if the 
Government harasses a taxpayer, brings a frivolous action against him 
and it is found that the taxpayer does not owe the Government any 
money, that action may have been before the courts for years and may 
well have bankrupted the taxpayer in attorney fees for the defense of 
that action, but if in the final determination of the suit it is found that 
he owes nothing, then the Government should be required to pay that 
attorney fee. 

Mr. President, I do not see all of the concern we manifest here in the 
Senate about attorney fees. I like to see attorneys earn fees. I like to 
see them succeed in their profession. But I do not believe it is up to 
the United States Government to subsidize attorneys who bring actions 
against individuals, against corporate entities, against government 
bodies. 

It certainly is an encouragement to the stirring up of litigation. 

There is a term in the law, or a word in the law, called barratry. 
Barratry means the stirring up of litigation against people. 

Certainly, it is unethical conduct for an attorney to engage in the 
practice of barratry. It is illegal. It is unethical. 



68 



But here we are doing exactly that if we pass this bill. We are un- 
necessarily stirring up litigation. 

I will not say that the Senate in passing this bill is acting in an un- 
ethical fashion". Certainly, the Senate has got a right to pass this bill if 
it so desires. 

But if it were an individual doing it, I would say it would be uneth- 
ical and possibly illegal. 

The Sennle h;is shown an unusual concern for guaranteeing attor- 
ney's fees, and large fees at that. 

M r. Mathtas. Will the Senator yield ? 

Mr. Allen. I do not yield. 

M r. Mathtas. The Senator commented on the lack of speakers sup- 
porting the bill. 

Mr. Allen. I do not yield to the Senator. I have the floor. 
Mr. Mathias. The Senator does. 

Mr. Allen. I hope the Senator will not interrupt me while I dis- 
cuss this important matter. 

I might comment that I waited to see if anybody else wanted to ask 
for the floor. The Chair was just about to put the question on agreeing 
to the Kennedy substitute. The Kennedy substitute is a nice little item, 
I might say. What it does is to add about 7 words to the bill but it is 
done in the form of a substitute. 

A casual observer might feel, "What is wrong with passing a sub- 
stitute and going on to other amendments ?" 

The joker in that, is if we pass a substitute no further amendments 
would be in order. 

Amendments are now in order to the Kennedy substitute and to the 
bill itself. I do propose to offer an amendment in a short while which 
would pay attorney fees to taxpayers w T ho are wrongfully sued bv the 
IRS. 

I would welcome an explanation by advocates of the bill, but none 
will come forward. The author of the bill is not even present. Mr. 
Tunney is the author of the bill but he is not here to explain it. 

Of course, it is easy to pass any bill that has the words "civil rio-hts" 
in the bill. That is an easy bill to pass. Those are the key words. If one 
puts "civil rights" in the bill, the bill will pass without Senators both- 
ering to check into what is involved. 

But this bill, Mr. President, does not involve civil rights. This bill 
involves attorney fees. That is all there is in the 

[S 16429] 

bill. There is not one single additional civil right extended. There is 
not one single civil right protected, not one single one. There is not 
one thing in the bill except guaranteeing attorney fees. Why should 
we in the Senate be concerned about seeing that attorneys get fees ? 

Mr. President, I have mentioned that the Senate has shown undue 
concern about seeing that attorneys get fees. 

Mr. Cranston. Will the Senator yield? 

Mr. Allen. No ; I do not. 

Let use see the record of the Senate in this regard. 
The first action the Senate took regarding attorney fees had to do 
with the no-fault insurance legislation which came up here in the Sen- 



69 



ate. I do not favor the no-fault insurance. I do not believe it has worked 
well where that is the law in the various States. I believe it is some- 
thing that the States should do if it is to be done at all and not the 
Federal Government. 

I favor the concept that the States should be allowed to perform 
many governmental services rather than the Federal Government. If 
our State legislature wants to enact a no-fault insurance law I would 
certainly support that concept, if they wished to do it. 

One of the largest groups, or I might say the largest group, oppos- 
ing the no-fault insurance concept was the trial attorneys of the Na- 
tion, the damage suit lawyers, we might say. Obviously, with the no- 
fault certain but smaller amounts are paid for damages sustained in 
automobile accidents. Under the present law, of course, the sky would 
be the limit, with certain limitations as to excess recovery. Naturally, 
larger attorney fees would be received under the present law. 

So the Senate turned back the no-fault insurance. I dare say if the 
lawyers had not opposed no-fault insurance, it would have passed 
overwhelmingly. 

That is the first instance of the Senate taking care of the lawyers 
on their fees. 

The next instance that I recall had to do with the antitrust legisla- 
tion which passed the Senate and the House. There was no conference 
report, but the bill now, I assume, is on the President's desk. That bill 
had a difficult course here in the Senate. We had considerable debate 
on it. I believe it was debated for a couple of weeks, at least, 

Mr. President, do you know what the main thing involved in that 
antitrust bill was ? It was protecting lawyers, guaranteeing a certain 
favored few among the legal profession access to litigation where tre- 
mendous fees, up in the millions of dollars, Mr. President, might be 
paid on some of these antitrust actions. 

How did that come about? Hoav could lawyers profit by antitrust 
legislation ? 

Well, the bill had this provision in it: The attorneys general of the 
50 States — and I think some of the territories as well ; certainly the 50 
States — could farm out to such cronies as thev might have in the legal 
profession antitrust actions, taking it away from the Justice Depart- 
ment — not taking it away, but adding this additional route on to the 
present procedure, where the Justice Department handles antitrust 
legislation — adding 50 separate and distinct agencies or entities bring- 
ing or having authority to bring antitrust actions, where they would 
go in and sue some company for everybody that may have paid 2 cents 
too much for toothpaste over a period of years. They sue for all of 
those people, and when you add the damages up it runs into millions of 
dollars: and the attorneys are allowed to receive contingent fees under 
that procedure. 

Mr. President, that was the chief point of contention in the entire 
legislation. That is what caused the difficulty. It was not looking after 
the consumer. The consumer might have 13 cents involved; but when 
you multiply that by 15 million consumers, it adds up to a lot of 
money. 

What was at the bottom of that legislation, Mr. President, was con- 
cern for attorneys and attorneys' fees. Had that been stripped from the 



70 



bill, we would not have had a 2 weeks debate on it. It would have been 
passed very quickly. 

80 there, Mr. President, is the second instance of the Senate's great 
concern for attorneys and attorneys' fees. Oh, we do great things for 
the consumer. We have great concern for the consumer. Oh, the con- 
sumer is king; we have got to take care of him. And it is made to ap- 
peal that tins antitrust legislation is going to benefit the consumer. 

Well, the consumer's recovery would be a pittance. Who would bother 
to ask the court for $1.57? Very few people. But add that up and give 
the attorney his contingency fee, and the consumer has not benefited, 
but the attorney has. 

1 have no fault to find with attorneys. I am a member of the legal 
profession, and have been for 40 years. I do not practice law, inasmuch 
as 1 have a fulltime job in the U.S. Senate, but 1 retain my high regard 
and great respect for the legal profession. 

Mr. President, this type of suit really is not brought by the average 
country lawyer, shall I say, the average small-town lawyer. These 
types of suits, these antitrust suits, are brought by a relatively small 
group of activist attorneys. 

Talk about cronyism : that is w 7 hat we had in this antitrust legisla- 
tion ; taking care of a small group of activist attorneys. All of the talk 
about aiding the consumer is just a smokescreen, Mr. President. We 
all know that. It is not publicized a great deal, because the media like 
to see free enterprise institutions assailed. They enjoy that; it makes 
good news for them — though not very good news for those who are 
sued. But you never really get the true story. 

Going home some nights, I hear Paul Harvey. He says, "You know 
the news ; now I am going to tell you the rest of the story." And he has 
really interesting little vignettes in the way of telling of some incident 
or some person's life. 

J ust last night, or the night before, he was telling about a lady who 
lived in a house that was formerly a freight train caboose, and who 
made a living from her garden, where she raised vegetables of one 
sort or another, and one vegetable or organic food that he mentioned, 
I believe, was comfrey, which is supposed to have certain medicinal 
qualities. 

They live far below the poverty level in their expenditures for liv- 
ing, she and her husband. However, they do a whole lot of good works 
from funds that they have ; and Paul Harvey told the rest of the story : 
that this lady is a granddaughter of John D. Rockefeller, Jr. But you 
would never know that from their lifestyle. 

I am telling the rest of the story on the antitrust legislation. It is 
supposed to be for the benefit of the consumer, the little man, but 
actually it benefits, in the main, a small group of activist attorneys. 

So that was the main bone of contention, Mr. President. Some of us 
did not want to see this harassment machinery set up where, instead 
of just having the Justice Department file antitrust actions, 50 attor- 
neys general's departments throughout the country were set up as sub- 
oflices — suboflices — in the bringing of antitrust proceedings, so that if 
you get some eager beaver attorney general who feels that prices have 
been iixed on some commodity, he can haul the company that makes 
it into court and claim, perhaps, that they overcharged, through price 
fixing, some 2 or 3 cents on an item. 



71 



The damages are huge under this process of aggregation of damages, 
where they do not have to show actual damages to anyone, but where 
they just take a pencil and say, "Now. look, on this tube of toothpaste 
they overcharged 3 cents a tube and they have been selling 50 million 
tubes a year, so they have overcharged then some whatever that would 
be. $1.5 million, say." 

So, with a potential judgment of that sort against a company, they 
are prone to settle the case. In one case actually the amount of recovery 
was $200 million. Think what a melon those attorneys sliced on that 
litigation, a $200 million settlement. I daresay the recovery if they had 
gone on to court might have been $1 billion. Or it might have been 
nothing. Sometimes that is the case. 

I remember reading the paper the other day where some child had 
been injured, damaged by a doctor and suit had been brought against 
the doctor or the hospital. I forget which. That is not important. But 
while the jury was out, they reached a compromise settlement, some- 
where in the neighborhood of $1.5 million, I think maybe $450,000. 
But that is not important. It was a huge settlement. And as soon as they 
had shaken hands on the settlement or signed papers, the jury an- 
nounced it was ready to come back, and it did come back. The jury 
made known what their verdict would have been had the case not been 
settled. It would have been a verdict for the defendant. 

That is not always the case, of course, and these companies have to 
settle these matters rather than risk tremendous scare verdicts, and 
the attorneys profit under a contingency fee arrangement. 

So that was the main concern, and I am telling the rest of the story 
here now, as Paul Harvey does. As he would say, "You know the news, 
the antitrust 

[S 16430] 

bill passed the Congress." But I am telling the rest of the story. 
That was not, in the main, a consumer bill, a bill for the protec- 
tion of the consumer. It vas a bill for thp nroteetion of lawyers Mr. 
President, if President Ford signs the bill— I hope he vetoes it — in 
every State in the Union they will have a subantitrust office in the at- 
torney general's department and the attorney general can check around 
and see which company or which manufacturing or sales group he 
wants to sue. Then he can call his friend in one county who has been 
supporting him through the years, contributing to his campaign and 
say: "Look, we have an antitrust action here for you to bring, and 
whatever you recover you will get a contingency fee on it that could 
run up to a staggering amount." 

Naturally, the attornev would thank the attorney general and enter 
upon the preparation of his paper. 

L~P AMENDMENT XO. 47 2 

Mr. President. I am going to send to the desk my amendment, on 
which I am going to call for the yeas and nays, that provides, as I 
stated at the outset, whore the IRS wrongfully sues a citizeu and is 
found that the suit seeking the establishment of tax liability is with- 
out merit or frivolous, then in that event the Government will be re- 
quired to pay an attorneys' fee to John Q. Citizen who has been har- 



72 



assed by the IKS. So I send this amendment to the desk and ask that 
it be stated. 

The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen), for himself and Mr. Helms, proposes 
imprinted amendment No. 472. to the Kennedy amendment. 

TO amend the Kennedy substitute to S. 2278 on line 8, by striking the comma 
after V.m and add the following: 

"Or where suit is brought by the IRS against any person asserting the existence 
of tax liability t<> the government on the part of such person and said suit is 
found in such action to be without merit or frivolous." 

Mr. Allen. T ask for the yeas and nays, Mr. President. 
The Presiding Officer. Is there a sufficient second? There is not a 
sufficient second. 

Mr. Allen. Mr. President, I have no recourse but reluctantly to 
suggest the absence of a quorum which, under the policy I have estab- 
lished, would be a live quorum. I would hope that we might hold 
the request in abeyance for a moment. I hate to occupy the Senate in 
a quormn. 

Mr. Nelson. If the Senator will yield, perhaps there are some Mem- 
bers in the cloakroom. 

Mr. McCltjre. We can round one up. 

Mr. Allen. So I will talk for a moment in the hope we can get the 
Members of the Senate in the Chamber. I would much prefer that the 
time of the Senate be used in discussion of the bill, rather than a 
quorum call. I have no plans to put in a quorum call at any time today, 
but if anyone does suggest the absence of a quorum, I am going to 
assume that he wants to find out if there is a quorum of the Senate 
present, and I will object to any request to call off the quorum call. 

So at this time inasmuch as several Senators have entered the Cham- 
ber, I ask for the yeas and nays on my amendment. 

The Presiding Officer. Is there a sufficient second? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the amend- 
ment of the Senator from Alabama. The yeas and nays have been 
ordered. The clerk will call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Michigan 
(Mr. Philip A. Hart), the Senator from Louisiana (Mr. Johnston), 
the Senator from Wyoming (Mr. McGee), the Senator from Minne- 
sota (Mr. Mondale), the Senator from New Mexico (Mr. Montoya), 
the Senator from Utah (Mr. Moss), and the Senator from California 
(Mr. Tunney) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from New York (Mr. 
Buckley), the Senator from Kansas (Mr. Dole), the Senator from 
Texas (Mr. Tower), and the Senator from Connecticut (Mr. Weicker) 
are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 



73 



The result was announced — yeas 39, nays 47, as follows : 

[Rollcall Vote No. 625 Leg.] 



YEAS— 39 



Allen 


Fannin 


Nunn 


Bartlett 


Garn 


Packwood 


Bellmon 


Goldwater 


Pell 


Brock 


Griffin 


Roth 


Bumpers 


Hansen 


Scott, William 


Burdick 


Hathaway 


Sparkman 


jD^iti, Hciriy x., j i. 


neims 


Stennis 


13 j iu, xvouert 


numpiii ey 


Stevens 


Cannon 




oione 




Long 


oyiniiigtoii 


-L'oiiieiiici 


McClellan 


x aim doge 


-L'UlKin 


ivicvviutre 


Thurmond 


Hi <xf> H ttllU. 


iviorgcin 


\' /111 Y-\ O' 

-L U Ullg 




IN A. X to *± I 




Abourezk 


Hart, Gary 


Metcalf 


Bayh 


Hartke 


Muskie 


Beall 


Haskell 


Nelson 


Bentsen 


Hatfield 


Pastore 


Biden 


Hollings 


Pearson 


Brooke 


Hruska 


Percy 


Case 


Huddleston 


Proxmire 


Church 


Inouye 


Randolph 


v^iai k 


j acKson 


xvl uiiami 




Javits 


SioVl YJir£M \rc>i* 


Culver 


Kennedy 


oCOLl, JtlUgfl 


Curtis 


Leahy 


ouanorci 


Eagleton 


Magnuson 


Stevenson 


Fong 


Mathias 


Taft 


Ford 


McGovern 


Williams 


Gravel 


Mclntyre 






NOT VOTING— 14 




Baker 


Johnston 


Moss 


Buckley 


Mansfield 


Tower 


Dole 


McGee 


Tunney 


Glenn 


Mondale 


Weicker 


Hart, Philip A. 


Montoya 





So Mr. Allems amendment was rejected. 
Mr. Hathaway and Mr. Helms addressed the Chair. 
The Presiding Officer (Mr. Leahy). The Senator from Maine is 
recognized. 

Mr. Hathaway. Mr. President, I yield to the Senator from Cali- 
fornia. 

Mr. Cranstox. Mr. President, it was alleged in the course of the 
debate against this bill this morning by the Senator from Alabama 
that those who are in favor of the pending measure have not been 
present to debate and have not made any statements in behalf of the 
bill. As closely as I can remember, that is exactly what was stated. 

I then spoke with the Senator from Maryland to verify my impres- 
sion that he had given a lengthy speech yesterday, detailing exten- 
sively his reasons for supporting this bill. He stated that he had done 
so. The record shows that he did so. 



74 



The Senator from Maryland then sought the floor; lie asked the 
Senator from Alabama to yield, simply for the purpose of straighten- 
ing out the record to make plain that he had been present, had spoken 
at length, and his arguments are in the record. The Senator from Ala- 
bama refused to yield to him. 

Upon another occasion, I asked the Senator from Alabama if he 
would yield solely for the purpose of my making a few points in 
regard to this bill. Again, the Senator from Alabama refused to yield 
the floor. 

My only point in making this statement is to correct the record. 
There are those present and there have been those present who have 
wished to speak for the bill ? 

Mr. Allen. Will the Senator yield? 

Mr. Cranston. I cannot yield. The floor is in the hands of the Sen- 
ator from Maine. 

Mr. Allen. Will the Senator from Maine yield ? 

Mr. Hathaway. I vield to the Senator from Alabama. 

Mr. Allen. The Senator from California could get the floor now. 
I do not recall the Senator from Maryland making any remarks. 
Possibly he did. 

Mr. Cranston. If the Senator from Alabama wall read the record, 
he will find that he did. 

Mr. Allen. I do not recall, and I was here practically all the time. 
I may have stepped to an adjoining room for a few minutes. I do not 
recall the speech. 

As for his asking for me to yield the floor to him, he had not ap- 
peared, when the bill was called up, to speak. I hope advocates of the 
bill will have something to say in favor of the bill, if in fact, there 
is something to be said. 

Mr. Cranston. Advocates of the bill have made statements for the 
bill. The Senator from Maryland indicated to me that he gave a very 
long speech. 

Mr. Hathaway. Mr. President, the bill we have under considera- 
tion, S. 2278, the Civil Rights Attorneys' Fees Awards Act, would 
allow a Federal court to provide the familiar remedy of reason- 
able counsel fee awards to private citizens who must go to court to 
enforce the civil rights laws which Congress has passed since 1866. 
This bill would add the same type of "fee shifting" provision con- 
tained in portions of every major civil rights bill passed since 1964 to 
other civil rights 

[S 16431] 

statutes which do not now specifically authorize fee awards, thereby 
achieving consistency in the civil rights laws. 

In the typical case arising under these civil rights laws, the citizen 
who must enforce the provisions through the courts has little or no 
money with which to hire a lawyer, and there is often no damage claim 
from which an attorney could draw his fee. If private citizens are to 
be able to enforce the laws — if those who violate these most basic human 
freedoms are not to proceed with impunity — then citizens must have 
the opportunity to recover what it costs them to vindicate these rights 
in court. 



75 



The reason why this bill was not offered years ago is that, until the 
Alyeska Pipeline case decided by the Supreme Court last year, Federal 
courts had been routinely awarding fees in civil rights cases covered 
by this bill. The courts reasoned that they had the inherent equity 
power to make these laws effective, and that Congress had indicated 
very frequently in civil rights bills that attorneys' fees were one way to 
achieve effectiveness. 

Last year, however, the Supreme Court held that the Federal courts 
did not have this inherent power, no matter how oeneficial fee awards 
were, and that Congress must specifically grant them that power if the 
practice were to continue. 

This bill, then, contains no startling new remedy — it only meets the 
technical requirements that the Supreme Court laid down if the courts 
are to continue the practice of awarding attorneys' fees which had been 
going on for years prior to the Alyeska decision. It does not change the 
statutory provisions regarding the protection of civil rights, except as 
it provides the fee awards which are necessary if citizens are to be able 
to effectively secure compliance with these existing statutes. 

Mr. President, right now the vindication of important congressional 
policies in the vital area of civil rights is made to depend upon the 
financial resources of those least able to promote them. Because of this, 
violation of fundamental human rights goes unchallenged. Unless this 
bill is passed, statutes which allow citizens to go to court to pursue 
enforcement of civil rights will become historical documents, rather 
than the useful tools for law enforcement which they have become over 
the past decade. Mr. President, we cannot allow this to happen. I urge 
adoption of this measure. 

Mr. Aboukezk. Mr. President, will the Senator from Maine yield 
to me for a question ? 

Mr. Hathaway. I would be happy to yield to the Senator from 
South Dakota. 

Mr. Aboukezk. There has been a great deal made here on the floor 
by opponents of this legislation that it would encourage frivolous law- 
suits. It has been the "lawyers' relief bill," as every bill has been called 
when it has come up and there has been opposition to it. But, accord- 
ing to the provisions of the bill itself, is it not true that the legislation 
says the court, in its discretion, may award attorneys' fees to the pre- 
vailing party, so that if the defendant in a civil rights suit were to 
prevail the court could prevent a frivolous lawsuit by having that 
provision available? 

Mr. Hathaway. The Senator is absolutely correct. There is adequate 
safeguard in the bill to protect against frivolous lawsuits. 

Mr. Abotirezk. So, if somebody thought, some lawyer thought, he 
was going to make a lot of money by bringing civil rights suits he 
would be subject to bein£ penalized himself; is that not correct? 

Mr. Hathaway. The Senator is correct. 

Mr. Abotirezk. I thank the Senator. 

The Presidixg Ofetcer (Mr. Leahy). Does the Senator from Maine 
yield the floor ? 

Mr. Hathaway. The Senator from Maine yields the floor. 
Mr. Helms. Mr. President, I thank the Chair. 



70 



I am very pleased at long last to hear some comment, 'brief as it was 
and defensive as it appears to be, on the part of the proponents of 
t his legislation. 

Now, the distinguished Senator from California (Mr. Cranston) 
referred to a long speech made yesterday by the able Senator from 
Maryland I Mr. Mathias). The Senator from North Carolina was on 
the floor just about all day long, and I did not hear any long speech 
by the distinguished Senator from Maryland. Did the Senator from 
A I a l>a ma hear it? 

Mr. Allen. No ; I did not hear it. 

Mr. I [elms. I will say to the able occupant of the Chair that either 
Senator Allen or the Senator from North Carolina was on the floor 
at all times yesterday. Senator Mathias may have put some written 
material into the Record, but he did not deliver it on the floor, where 
ii could be debated. 

The only time I recall the Senator's making any comment was in 
objection to an amendment submitted by the Senator from North Caro- 
lina, which amendment was intended to relieve the average citizen of 
this country of the harassment and intimidation of Federal bureau- 
crats that now exist. 

The Senator from Maryland said he agreed with me, yet he moved 
to table my amendment and, of course, as is well known in this body, 
as it operates, the majority came in and obtained their instructions on 
how to vote. The amendment was tabled without even half the Senators 
knowing what it was all about, 

The same will happen — 

Mr. Hathaway. Mr. President, will the Senator yield ? 

Mr. Helms. No; I believe I will finish my line of thought, if the 
Senator does not mind. 

The same thing will happen undoubtedly as to the amendment the 
Senator from North Carolina will call up after he finishes his state- 
ment in connection therewith. We can count the Senators on the floor 
right now on two hands, and, undoubtedly, there will be a motion to 
table. There will be instructions whispered to the Senators as they 
enter the Chamber. They will obediently vote to table this amendment, 
and another good amendment will bite the dust. The excellent amend- 
ment submitted by the Senator from Alabama, cosponsored by the 
Senator from North Carolina, would have given relief to taxpayers 
harassed and intimidated by the Internal Revenue Service. It was 
defeated bv the votes of Senators who were not present to hear one 
word of debate. 

This harassment of citizens by IRS bureaucrats is going on all over 
the country. There have been many articles in various publications, 
including the Reader's Digest, about how the IRS bureaucrats perse- 
cute, prosecute, intimidate and harass the common man in this country. 

Here the Senator from Alabama and the Senator from North Caro- 
lina attempted to do something about it. and in come the absent Sen- 
ators on a rollcall : they get instructions from the manager of the bill, 
"vote it down, vote it down.'' And vote it down thev did. 

That is the way it ooes. Mr. President. This is the way this Senate 
operates these days with the prevailing maioritv. 

And then thev piously lament the fact that the minoritv of the 
Senate occasionally uses the rules in an attempt to restrain unwise 



legislation. Well, I have got news for the majority. As long as this 
kind of inattention to legislation continues, this Senator, at least — ■ 
and I am confident there are some others — is going to use every rule 
he can to block ill-considered legislation. 

Threats are already being heard about rule XXII. They say that 
they intend to further dilute rale XXII when the 95th Congress com- 
mences in January. I would advise them to carefully think about that, 
because if they want to play hard ball, the Senator from North Caro- 
lina can play it also. So we will see. 

But I just want to say for the record that I was on this floor prac- 
tically all day yesterday. I did not hear the Senator from Maryland 
make a long speech in defense of this bill. He did not do it. 

He may have put written material in the Record, but he did not 
make a speech on this floor in defense of this bill. So the Senator from 
California is in error. 

Mr. President, the amendment which I will call up shortly would 
remedy the unnecessarily broad aspects of this proposed legislation. 

Parenthetically, I might say that I am not going to call it up until 
I conclude my remarks because the amendment would then be subject 
to a motion to table with no further discussion. So I shall wait until 
the conclusion of my remarks to call up the amendment. 

First, it would require that the judge's decision to grant attornej-s' 
fees to the prevailing party be based upon a showing of the other 
party's bad faith in conducting the litigation. Second, it would afford 
protection to financially pressed State and local governments by in- 
cluding them within the bill's exemption from liability granted to the 
Government of the United States. 

Mr. President, the American judicial tradition in general disap- 
proves the allowance of attorney's fees to the prevailing party in civil 
legal actions. The Federal judiciary has been exceedingly cautious in 
carving out even limited exceptions to this rule. The basis of this 

[S 16432] 

approach was recently outlined by the Supreme Court. The Court 
stated that — 

Since litigation is at best uncertain one should not be penalized for merely 
defending or prosecuting a lawsuit, and that the poor might be unjustly dis- 
couraged from instituting actions to vindicate their rights if the penalty for 
losing included the fees of their opponent's counsel. Fleischmann Distilling Corp. 
v. Maier Brewing Co., 386 U.S. 714, 718 (1967). 

In short, American jurists reject the proposition that the loser 
in a law suit be required to pay the attorney costs of the winner. The 
amendment that I shall submit momentarily is designed to brine; this 
pending legislation within the American tradition. My amendment 
would do so, first by setting an objective standard to guide judges in 
their awarding of such fees and second by more clearlv identifying 
which parties would be subject to its exemption under the statute. 

Presently this bill requires a Federal court to grant attorneys' fees 
to the prevailing party solely on the basis of its own discretion. My 
amendment incorporates an objective standard to aid judges in mak- 
ing their decision. It would simply require that the party seeking to 
recover legal fees demonstrate to the court through sufficient evidence 
the "bad faith" of the other party in maintaining the suit or in actions 



78 



which preceded the suit. This bad faith standard has an established 
judicial meaning and effect and should be construed in light of its 
use in the Federal Rules of Civil Procedure. It has been interpreted 
by Federal courts to include dilatory and objectionable tactics before 
or during trial. It would include actions for which a party has been 
held in civil contempt. It would also include clearly spurious or friv- 
olous defenses and vexatious, wanton, or oppressive actions during 
Litigation. While this requirement does set an objective, reviewable 
standard,, it is broad enough to be responsive to the many differing 
circumstances to which the court would have to respond. 

It is maintained that part of the rationale for S. 2278 and the Ken- 
nedy substitute is that a plaintiff in cases arising under these statutes 
is acting as "a private attorney general," and that therefore the award 
of attorney's fees is appropriate. In the Alyeska case, Justice White 
explained that — 

Since the essential function of the private attorney general is to call public 
officials to account and to insist that they enforce the law, it would follow in 
such cases that attorneys' fees should be awarded against the government. 
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267 (1974). 

However, this bill exempts the United States from such an award. If 
the reason for passing S. 2278 is that the plaintiff is acting as a pri- 
vate attorney general, then he should clearly be able to recover such 
an award from the United States when the Federal Government is 
involved in the lawsuit. Since he is not able to do so under this pro- 
posal, I suggest that perhaps the private attorney general justifica- 
tion is inappropriate for this legislation. One convincing argument for 
rejecting liability for the United States and, therefore for rejecting 
the concept of private attorney general was stated by Assistant Attor- 
ney General Rex E. Lee : 

The theory is that the government's adversaries in litigation are merely forcing 
government to obey the law ; that in this capacity they are performing a public 
service as private Attorneys General, and are, therefore, entitled to be paid for it 
Once again, this argument assumes an overly simplistic notion of litigation. The 
proposition that the government as a matter of policy or practice goes into court 
for the purpose of asserting frivolous positions simply can not be sustained. 

Mr. President, I disagree with the position that the bureaucrats in 
the Federal Government cannot be said to act in a frivolous manner in 
bringing legal action against American citizens, however, if the Senate 
does find this analysis convincing in regard to National Government, 
I suggest that our system of federalism mandates that State and local 
governments have the same constitutional integrity and should there- 
fore be accorded the same exemption. We cannot respect our federal 
system and accept legislation which assumes that State and local gov- 
ernments act in a frivolous or vexatious manner while it is assumed 
that the National Government can never do so. 

This legislation provides that State and local governments and 
their officials can be defendants in cases involving these statutes and 
that attorneys' fees will "be collected either directly from the official 
in his official capacity, from funds of his agency or under his control, or 
from the State or local government." Presently this legislation poten- 
tially places a tremendous burden upon State and local governments. 
In other public interest law suits where the legal fees have been con- 
tested they have ranged from $200,000 to $800,000. Certainly, it is 



79 



unwise to provide that liability in these amounts be assumed by 
already financially hard-pressed State and local governments. 

Therefore, the amendment I am about to call up would exempt 
State and local governments from the provisions of S. 2278, or the 
Kennedy substitute. 

The court of appeals in the Alyeska case discussed at length the 
circumstances which give rise to the necessity for the private attorney 
general concept as it relates to attorneys' fees. The court stated that : 

When violation of a congressional enactment has caused little injury to any one 
individual, but great harm to important public interests when viewed from the 
perspective of the broad class intended to be protected by that statute, not to 
award counsel fees can seriously frustrate the purposes of Congress. 495 F. 2d 
1020, 10.30 (D.C. Cir. 1974). 

However, this fact pattern is not present under the civil rights 
statutes affected by the present legislation. The violation of the rights 
protected by these statutes result in a substantial injury to the parties 
involved. That legal harm is incentive enough for legal action. These 
are not cases where each member of a broad group is slightly injured 
and where each member as an individual plaintiff lacks a sufficient 
incentive to undertake litigation. Here we are dealing with the normal 
type of plaintiff and the extraordinary remedy provided by this legis- 
lation is unnecessary. 

Chief Justice Burger has time and again stated the urgency for 
reform of the Federal judiciary to make access easier and dispositions 
quicker for those who must utilize the Federal courts. Those persons 
who have found themselves involved in civil legal actions and who have 
had to wait as long as 3 or 4 years for their case just to come to trial 
because of the heavy caseloads of Federal courts would surely agree 
that every alternative should be tried before the caseload of the Fed- 
eral courts is increased still further. Recently the Supreme Court 
responded to this problem. The Wall Street Journal reports that the 
decision of the Court denying attorneys' fees in the Alyeska case was 
motivated in part by the desire not to increase the caseload of the 
Federal courts. We are undoing that with the pending legislation. 
Undoubtedly the added incentive of receiving one's attorneys' fees 
from the opposing party will increase the number of cases brought 
before the Federal bench. The legal journal, Juris Doctor, reports 
future "attorneys' fee awards were the number one factor in the future 
of public interest law financing." This increased caseload will again 
expand the waiting periods for trial which are already far too lengthy 
in the Federal court system. We are all familiar with the phrase "jus- 
tice delayed is justice denied." We are dangerously approaching the 
threshold where this delay becomes the denial of justice in many areas 
of this country. The present legislation, whether the Tunney bill or 
Kennedy substitute, will only aggravate this problem. 

During the last 200 years our judicial system has developed a num- 
ber of costs of litigation, both of a monetary and a nonmonetary 
nature which act as a deterrent to trivial and specious law suits. By 
reducing these costs, this legislation increases the burden on the Fed- 
eral judiciary. Witnesses before the House Subcommittee on Civil and 
Constitutional Eights testified that such legislation would result in an 
increase in the Federal courts' caseload. I suggest that our responsi- 
bility to further the timely administration of justice in this country 

79-5SG— 77 7 



80 



requires that we pursue every alternative before increasing the case- 
load of the Federal judiciary, 

Another assumption behind this legislation is that many citizens will 
not bring meritorious suits if they are required to pay the cost of their 
attorneys' fees. I hope that all Americans will vigorously defend their 
civil and legal rights when they are infringed. However. I cannot see 
granting this extraordinary advantage to one party in these limited 
rases when it has been steadfastly rejected in almost every area of 
American law. Why should these rights, important as they may be, be 
given a greater priority than the right to receive the bargain of one's 
contract or the freedom from the intentional or negligent infliction of 
personal in jury. I do not think that we today can say that the rights 
involved in this legislation are of significantly greater value than our 

[S 16433] 

other traditional legal rights. Even if we assume that it is proper to 
make this exception to the American rule in these cases to assist in- 
digents, the problem of providing legal services to indigents is already 
being met by other methods. Legal assistance is already being provided 
on the local level by both private and public organizations. Those who 
are truly unable to afford legal enforcement of their rights can turn to 
one of the many legal aid services or the many public interest law firms 
and foundations. These already existing services make the wide- 
spread use of the proposed fee-shifting mechanism in this legislation 
unnecessary. 

Emphasis has been placed upon the fact that titles IT and VII of 
the Civil Rights Act of 1964 and title VIII of the Civil Rights Act 
of 1068 contain provisions for the award of attorneys' fees. These stat- 
utes meticulously detail and carefully outline the procedures and the 
remedies available to a plaintiff seeking their protection. The civil 
rights statutes affected by this legislation, however, are broad, ambigu- 
ous, and far-reaching in coverage. Depending upon who may interpret; 
their effect, they could be easily interpreted by some to reach conduct 
which the vast majority of Americans would consider not only consti- 
tutionally permitted but totally proper. To allow an award of attor- 
neys' fees without guidelines to govern a court's determination is to 
invite potential test cases which will not only add to the congestion of 
Federal courts, but also severely harass citizens who are engaged in 
constitutionally permissible conduct. 

Mr. President, if the Senate finds it necessary to make this exception 
to the American rule regarding the award of attorneys' fees under, 
cases brought to enforce provisions of sections 1077, 1978, 1979, 1980, 
and 1981 of the revised statutes, title IX of Public Law 92-318 or title 
VI of the Civil Rights Act of 1964, then I urge that it do so under the 
limitations provided for by my amendment. 

UP AMENDMENT NO. 4 7 3 

Mr. Helms. Mr. President, I now call up my amendment and ask 
that it be stated. 

The Presiding Officer. The amendment will be stated. 



81 



The assistant legislative clerk read as follows : 

The Senator from North Carolina (Mr. Helms) proposed an unprinted amend- 
ment No. 473 to the Kennedy amendment No. 2347 : 

On page 1, line 8, after "court" insert the following: upon a showing or 
finding of bad faith of the losing party,". 

On page, 1, line 9, after "United States," insert the following : "or any territory 
or possession thereof, or any State of the United States or any political subdivision 
thereof including special purpose units of general local government,". 

Mr. Helms. Mr. President, I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second ? There is not a 
sufficient second. 

QUORUM CALL 

Mr. Helms. I suggest the absence of a quorum, then. 

The Preseoing Officer. The clerk will call the roll. 

The second assistant legislative clerk proceeded to call the roll. 

Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded so that Mr. Helms can get 
the yeas and nays on his amendment. 

Mr. Allen. I object. 

The Presiding Officer. Objection is heard. 

The second assistant legislative clerk resumed the call of the roll, 
and the following Senators entered the Chamber and answered to their 
names : 

[Quorum No. 48 Leg.] 

Allen Griffin McClellan 

Byrd, Harry F., Jr. Helms Pearson 

Byrd, Robert C. Inouye Scott, Hugh 

Case Javits Stennis 

Culver Kennedy Symington 

Eastland Leahy 

Goldwater Magnuson 

The Preseoixg Officer. A quorum is not present. The clerk will call 
the names of the absent Senators. 

The second assistant legislative clerk resumed the call of the roll. 

Mr. Robert C. Byrd. Mr. President, I move that the Sergeant at 
Arms be directed to request the attendance of absent Senators. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from West Virginia. 

Mr. Robert C. Byrd. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from West Virginia. The yeas and nays have been 
ordered, and the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Michigan 
(Mr. Philip A. Hart) , the Senator from Louisiana (Mr. Johnston) , the 
Senator from Wyoming (Mr. McGee), the Senator from Minnesota 
(Mr. Mondale), the Senator from New Mexico (Mr. Montoya), the 
Senator from Utah (Mr. Moss) , the Senator from Rhode Island (Mr. 
Pell), and the Senator from California (Mr. Tunney) are necessarily 
absent. 



82 



I further announce that the Senator froni Ohio (Mr. Glenn) and the 
Senator Prom Montana (Mr. Mansfield) a re absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Iieall), the Senator from New York (Mr. Buckley), the Senator from 
Kansas (Mr. Dole), the Senator from Texas (Mr. Tower), and the 
Senator from Connecticut (Mr. Weicker) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 79, nays 5, as follows : 

[Rollcall Vote No. G26 Leg.] 



YEAS— 79 



Abonrezk 


dra vpI 
vjt l <x \ t;i 


in eison 


A lion 


Griffin 


Nunn 


DaTTleLt 


T-Tn n con 


Packwood 


Daj 11 


TTnvf* fio rir 
S-XcLLlf vjru.1,) 


ir dSLOl e 


I > t 1 IXUUI4 




x cu. I r>Oil 


T^oti f call 


TTntfi olrl 


Percy 


Brocfc 


Hathaway 


Proxmire 


Brooke 


Helms 


Kandolph 


1 lumpers 


Hollings 


Ribicoff 


Burdick 


II rusk a 


Roth 


Byrd. Harry F., Jr. 


Hmldlestou 


Sehweiker 


rjyru, rtouoir ^. 


Humphrey 


Scott, Hugh 


Cannon 


Inouye 


Scott, William L. 


Case 


Jackson 


Sparkman 


L 111 ICS 


T n -i-; -Ki 

.) R \ US 


Stafford 


v iai k 


Kennedy 


S tennis 


Cranston 


Laxalt 


Stevens 


Culver 


I^ealiy 


Stevenson 


( 'ui'tis 


Long 


Stone 


I )< mi 1 1 r<i 


A f -i o'n n <snn 


io^ 1111 11^ IV il 


Durkin 


Mathias 


Tuft 


Eagleton 


McClellan 


Talmadge 


Eastland 


McClure 


Thurmond 


Fannin 


McGovern 


Williams 


Fong 


Mclntyre 


Young 


Ford 


Metcalf 




Garn 


Miiskie 






NAYS— p 




Biden 


Gold water 


Morgan 


Church 


Hartke 






NOT VOTING— 16 




Baker 


Johnston 


Pell 


BeaU 


Mansfield 


Tower 


Buckley 


McGee 


Tunney 


Dole 


Mondale 


Weicker 


Glenn 


Montoya 




Bart, Philip A. 


Moss 





So the motion was agreed to. 

The Presiding Officer. (Mr. Goklwater). A quorum is present. 
Mr. Ivexxedy. Mr. President. I make a motion to table the Helms 
amendment. 

Mr. Robert C. Byrd. Mr. President. I ask for the yeas and nays. 
Mr. TTelms. I ask for the yeas and nays on the tabling motion. 
The Presiding Officer. Is there a sufficient second? There is a suf- 
ficient second. 



83 



The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion of 
the Senator from Massachusettes. On this question the yeas and nays 
have been ordered, and the clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Michigan 
(Mr. Philip A. Hart), the Senator from Louisiana (Mr. Long), the 
Senator from Wyoming (Mr. McGee), the Senator from Minnesota 
(Mr. Mondale), the Senator from Xew Mexico (Mr. Montoya), and 
the Senator from California (Mr. Tunney) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Hugh Scott. I announce that the Senator from Xew York (Mr. 
Buckley), the Senator from Kansas (Mr. Dole), the Senator from 
Michigan (Mr. Griffin) , and the Senator from Con- 

[S 16434] 

necticut (Mr. TVeicker) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 59, nays 28, as follows : 



[Rollcall Vote No. 627 Leg.] 



Abourezk 

Bayh 

Beall 

Bentsen 

Biden 

Brock 

Brooke 

Bumpers 

Bui-dick 

Byrd, Robert C. 

Cannon 

Case 

Church 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 

Fong 



Allen 

Bartlett 

Bellmon 

Byrd, Harry F., Jr. 

Chiles 

Curtis 

Eastland 

Fannin 

Ford 

Goldwater 



YEAS— 59 

Garn 

Gravel 

Hart, Gary 

Hartke 

Haskell 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Kennedy 

Leahy 

Magnuson 

Mathias 

Mc Govern 

Mclntyre 

XAYS— 28 

Hansen 

Helms 

Hruska 

Laxalt 

McClellan 

McClure 

Metcalf 

Morgan 

Xunn 

Packwood 



Moss 

Muskie 

Xelson 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicofi: 

Roth 

Schweiker 

Scott, Hugh 

Stafford 

Stevens 

Stevenson 

Symington 

Taft 

Williams 



Scott, William L. 

Sparkman 

Stennis 

Stone 

Talmadge 

Thurmond 

Tower 

Young 



84 



* ... 



NOT VOTING— 13 



Baker Hart, Philip A. 

Buckley Long 

Dole Mansfield 

Glenn McGee 

Griffin Mondale 



Montoya 

Tunney 

Weicker 



So the motion to lay on the table was agreed to. 



[S 16445] 



Civil Rights Attorneys' Fees Awards Act 



The Senate continued with the consideration of the bill (S. 2278) 
relaf ing to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Harry F. Byrd, Jr. Mr. President. I ask unanimous consent 
that John Brooks of my staff have the privilege of the floor during 
the debate on the civil rights attorneys' fees bill. 

The Presiding Officer. Without objection, it is so ordered.. 

Mr. Bath. Mr. President, I ask unanimous consent that Jane Frank. 
Robert Malson, Tom Susman. Jay Steptoe. Ralph Omen. Ralph Neas, 
and Barbara Dixon be granted the privilege of the floor during the 
consideration and votes on S. 2278. 

The Presiding Officer. Without objection, it is so ordered. 



Mr. Goldwater. Mr. President. I send an amendment to the desk, 
and T ask that it be stated. 

The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from Arizona (Mr. Goldwater) proposes amendment Xo. 2350. 

Mr. Goldwater. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with. 

The Presiding Officer. Without objection, it is so ordered. 
The amendment is as follows : 

At the end of the bill, insert the following new section : 

"Sec. . (a) Subchapter A of chapter 65 of the Internal Revenue Code of 
1954 is amended by adding at the end thereof the following new section : 

" 'Sec. 6408. Reimbursement of Taxpayer's Expenses in Certain Cases. 

"'(a) General Rule. — If — 

"'(1) the Secretary or his delegate subjects the return of a taxpayer 
to a field audit and after such audit (A) proposes a deficiency or overpay- 
ment of income tax imposed by chapter 1. which the taxpayer accepts in 
writing, on a form specified by the Secretary or his delegate, or (B) notifies 
the taxpayer that there is no change in his tax liability; 

"'(2) subsequent to the taxpayer's written acceptance of such proposed 
deficiency or overpayment, or the taxpayer's receipt of a notification that 
there is no change in his tax liability, the Secretary or his delegate proposes 
another deficiency or reduction in the overpayment of such tax from the 
same year with respect to which such acceptance has already been made, 
or such notification has already been received : and 

"'(3) the deficiency in such tax for such year finally obtained, or the 
overpayment finally allowed, is not more favorable to the Secretary or his 
delegate, than the deficiency or overpayment which the taxpayer had al- 
ready accepted, or the tax liability reflected on the return for which notifi- 



A3IEXD3IEXT XO. 2350 



85 



cation had already been received by the taxpayer, then the Secretary or his 
delegate shall reimburse the taxpayer for all expenses incurred by the tax- 
payer administratively or judicially (including, but not limited to, court costs 
and legal and accounting fees and expenses) in connection with the defi- 
ciency or reduction in overpayment proposed subsequent to such original 
acceptance or notification. 
"'(b) Procedure for Reimbursement. — Expenses incurred by the taxpayer 
which are to be reimbursed by the Secretary or his delegate pursuant to sub- 
section (a) shall be deemed, for the purposes of section 6511 (a), a tax paid by 
the taxpayer on the date his tax liability for such year is finally determined 
(whether determined administratively or judicially). For purposes of this title 
and section 1346(a) (1) of title 28, United States Code, the amount of tax so 
deemed paid by the taxpayer shall constitute an overpayment.' 

'•(b) The table of sections for such subchapter A is amended by adding at the 
end thereof the following new item : 

[S 16-M6] 

" 'Sec. 6408. Reimbursement of taxpayer's expenses in certain cases.'. 

"(c) The amendments made by this section shall apply only with respect to 
proposals of deficiencies or reductions in overpayments described in section 
6408(a) (2) of the Internal Revenue Code of 1954 (as added by subsection (a) ) 
notification of which is made on or after the date of the enactment of this Act." 

Mr. Gold water. Mr. President, I asked that my amendment not be 
read because it is a lengthy one. However, I shall explain it. 

In fact, we have already today voted on a similar amendment offered 
by the distinguished Senator from Alabama (Mr. Allen). 

In essence, what this amendment does is require the Federal Gov- 
ernment to pay the legal, court, and auditor fees, and other fees that 
come up when the Internal Revenue Service asks for a second audit 
of your income taxes and the Internal Revenue Service is wrong. 

These are some differences in my amendment from the one that we 
have already voted on. There are four differences. 

First, my amendment only applies when the Internal Revenue Serv- 
ice pursues a second audit. 

Second, my amendment covers accounting fees as well as legal costs. 

Third, my amendment covers expenses in administrative proceed- 
ing as well as in court. 

Fourth, my amendment covers suits brought by the taxpayer him- 
self as well as suits brought by the Government. 

Mr. President, as I said, this amendment would repay a taxpayer 
for the legal and accounting cost of contesting an unwarranted sec- 
ond audit of his income taxes. I believe a taxpayer who defends his 
rights against the Government in a tax case is enforcing his civil 
rights fully as much as another citizen who brings suit under specific 
civil rights laws. A taxpayer should be able to recover all of the costs 
of successfully defending himself against the Government, at least in 
those situations where the Internal Revenue Service is taking its sec- 
ond crack at the taxpayer. 

Mr. President, the need for this amendment stems from the all-too- 
common practice of the Internal Revenue Service to reaudit tax- 
payers who have already been thoroughly audited once and may even 
have been told that there is no change in their taxes. 

The amendment would not prevent the Government from making 
a second audit, but it may stop the IRS from harassing people. There 



86 



are far too many situations in which the taxpayer wins the case, but' 
loses all the costs. 

To give a little more background about this amendment, I might 
say that it is based upon the actual experiences of some taxpayers who 
have brought the problem to my attention. What happens is this. 

The IKS will conduct a field audit at which a taxpayers income tax 
liability is thorough 1 y e xamined. The citizen will be told in writing by 
the ITvS that there is a certain amount of tax due or that no additional 
tax at all is duo. Then the tax collector will turn around later and fol- 
low up with a second audit covering the very same tax year. Now, if 
that second audit is completed without there betng any change in the 
taxes due, the taxpayer is nevertheless forced to suffer 100 percent of 
all the costs of contesting the case. 

Mr. President, I believe we should do something to stop the unnec- 
essary harassment of ordinary citizens by overeager tax agents. A iegal 
battle to vindicate one's rights against improper conduct of the IRS is 
an effort to enforce one's basic human rights: and there is no reason 
why we should fail to help the victim of tax abuse as much as we help 
other victims whose rights are impaired. 

I might say, Mr. President, that I find no fault with the bill to 
which I offer this amendment. I think it is a proper one. I think at the 
same time we should recognize, as I have said, other inequities that 
occur to our citizens at all levels from the lowest taxpayer to the 
highest. 

My proposal is not retroactive. It does not apply to any audits or 
court proceedings that have already been instituted. The Senate has 
agreed to similar amendments at least twice before, only to have it 
dropped in conference: and I hope that the Senate will not only pass 
the amendment today, but will insist in conference upon placing this 
small measure of justice into our laws. 

And I will conclude. Mr. President, by saying that I have had this 
am n ndment introduced in both of the last two Congresses and I was 
a eosponsor with Senator Dole in one about 5 years ago. 

Mr. President. I have no further comments to make about this 
amendment. I offer it. I hope that the Senate will accept it. 

The Presiding Officer. The question is on agreeing to the 
amendment. 

Mr. Bath. Mr. President. I have been consulting with the principal 
author of this bill, and I find myself in a rather difficult position, feel- 
ing that the amendment of the Senator from Arizona has a good deal 
Of merit. As he pointed out. it passed this body at least once, probably 
twice before, and thus the Senate position has l>een rather clear. But 
We ere in a position right now where it is a matter of some significant 
question whether this measure that some of us feel is rather important, 
which is now before us. the Kennedy amendment, is going to be able 
to pas^ because of the time constraints. I do not know what the posi- 
tion of the Senator from Arizona is. and I am certain that this is not 
the re - son that he is offering his amendment. But we are advised, and 
T think probably accurately, that if we are to amend this bill so that 
it differs substantively from the measure which is presently in the 
process of passing the House we are. in effect, killing the legislation. 

T do not think that is what the Senator from Arizona wants to ac- 
complish. But I think he has been around these Halls long enough to 



87 



pnow that at this time in the session that is probably what would 
happen. 

Is there any way the Senator from Arizona could offer his amend- 
ment to another piece of legislation that may not face the kind of 
opposition that this particular measure has faced and thus be subject 
to a better chance of succeeding in his own right without killing the 
meritorious measure that is presently before us? 

Mr. Goldwater. I answer the Senator from Indiana by saying that 
I have been waiting for years for the committee to take action on 
this — either report it or not report it. I have not been able to get any 
estimate from Internal Revenue or any other of the downtown sources 
as to what it might cost. I have been waiting patiently for a bill to 
attach this to, and this has been the only one that has been directly 
related to the whole subject of lawyers' fees. 

As I said earlier, I think that the civil rights of American citizens 
are tampered with when they are forced to pay all the way from very 
minor amounts to very large amounts to lawyers and to auditors and 
even to pay court costs when they have honestly tried to fill out their 
income tax form in the proper way and may or may not have made 
a mistake. 

I do not hesitate to say that because I won a lawsuit, a rather sizable 
lawsuit, some 10 or 12 years ago, my return has been looked at every 
year ; and I am told that as long as my name appears on the computer, 
my taxes will be audited. I am just one. I know of others in Congress. 

I think it is fair legislation. I believe it would cause the Internal 
Revenue Service to take a second look before they just go out willy- 
nilly and look at the tax returns of people who have done their best 
to be honest and are honest. 

I do not want to see this legislation killed, and I have not offered 
the amendment for that reason. I will vote for the passage of this bill. 

I hope that the committee will not object to the amendment, will 
take it, will take it to conference, and see what the House will do. I 
cannot believe that either body, in voting on this matter, would want 
to turn it down. 

Mr. Bayh. Am I in error in saying that the Senator has already 
pointed out that on two occasions our brothers and sisters in the House 
have turned it down ? 

Mr. Goldwater. Yes ; they have. It baffles me. 

Air. Bayh. It baffles the Senator from Indiana. 

I have been advised by those who have been following the legislative 
process in the House more closely than I — the Senator from Massachu- 
setts being one — that if we were to accept any amendments, there 
would be a significant, substantive difference between the measure we 
hope shortly will pass the Senate from that which is in the process of 
passing the House, and it would become embroiled in the conference 
report, and that would kill it. I do not think the Senator from Arizona 
wants to see that happen. 

Mr. Goldwater. Let me try to be fair about this. The Senator from 
Massachusetts is not in the Chamber. We are going to have a cloture 
vote tomorrow. I would withhold a request for a vote on this amend- 
ment until the Senator from Massachusetts has had a chance to take a 
look at it and confer with me on it. If it would not hamper passage of 



ss 

[S 10447] 

the bill, I would call for a vote after the cloture vote tomorrow or 
before the cloture vote. 

Mr. Rwii. I think the Senator from Arizona, in his typical fashion, 
is being 1 very fair about this. I believe the Senator from Massachusetts 
can speak for himself better than can the Senator from Indiana, but 
that certainly is the legislative situation as I have seen it. 

Mr. Alt/fx. Mr. President. I hope the Senator will not withdraw his 
amendment, because after cloture has been adopted, the Senator** 
amendment would not be in order, in my judgment. 

Mr. Goldwater. I was going to ask that. 

Mr. Allex. At this time, germaneness is not required. I hope th<» 
Senat or will insist on o;oin<r ahead with his amendment. 

As to all this scare talk about the bill bein*r changed, I offered a 
seven-word change just the other dav that was already included in 
the Kennedy amendment, and they said that it would kill the bill. All 
this scare talk about killing the bill — that is just what it is; it is scare 
talk. 

I have no doubt that the House would have no objection to the 
amendment the Senator from Arizona is offering:. I hope he will 
insi>t 071 having a vote on his amendment and not fall victim to the 
suofoeption that he wait until after cloture is adopted, when the amend- 
ment would not even be in order. 

Mr. Goldwatee. Mr. President. I ask unanimous consent that, con- 
tra ry to the rule. I be allowed to call for a vote on this amendment 
after the vote tomorrow on cloture. 

The Presiding Officer. Is there objection? 

Mr. Allex. Was the request not only that it be called up but that 
it be considered to be crermane ? 

Mr. Gold watee . I include that in my unanimous-consent request. 

The Presiding Officer. Is there objection to the amended request \ 
The Chair hears none, and it is so ordered. 

Mr. Goldwater. I will call for a vote after the cloture vote tomor- 
row, regardless of which way it goes. 

I yield the floor. 

Privilege of the Floor — S. 2278 

Mr. Javtts. Mr. President. I ask unanimous consent that Charles 
Warren, of my staff, may have the privilege of the floor during the con- 
sideration of the pending bill on lawyers" fees in civil rights cases. 

[S 10448] 

The Presiding Offtcee. "Without objection, it is so ordered. 
Civil Rights Attorneys' Fees Awaeds Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 



89 



UP AMENDMENT NO. 4 75 

Mr. Allen. Mr. President, what is the pending business ? 

The Presiding Officer. The pending business is the amendment of 
the Senator from Massachusetts to the pending bill, S. 2278. 

Mr. Allen. Mr. President, I call up my unprinted amendment to the 
Kennedy amendment, which is at the desk. 

The Presiding Officer. The amendment will be stated. 

The assistant legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) proposes imprinted amendment Xo. 475 

to the Kennedy amendment Xo. 2347. 

Strike lines 1 and 2 and insert in lieu thereof the following : 

"That this act may be cited as the Tunney-Kennedy Civil Rights Attorneys 

Relief Act of 1976." 

Mr. Allen. Mr. President, I feel that this amendment should be 
adopted. It is in line with the amendment contained in the Senate 
amendment to the House amendment to the Senate amendment to 
H.R. 8532, the Antitrust Amendments Act, which named the Antitrust 
Amendments Act the Hart-Scott-Eodino Act. I feel that the propo- 
nents of this bill, the attorneys' fees bill, should similarly be recognized 
as the authors of this landmark legislation providing additional bene- 
fits for attorneys. 

I couple that with an amendment changing it from the attorney-" 
fee awards to Civil Rights Attorneys Relief Act of 1976. because the 
Senate has been more concerned. I believe, with securing attorneys' 
fees for attorneys than they have been Avith the consumer that some 
of these bills are supposed to be for. or even for civil rights, for that 
matter. This bill before the Senate now does not refer to civil rights as 
such. It does not create an additional civil right. It does not protect 
an additional civil right. All it has to do with is providing for attor- 
neys' fees for the attorneys, who do represent plaintiffs in actions under 
some of these laws, but the primary concern is seeing to it that attor- 
neys receive attorneys' fees for their services. 

I have been impressed by the fact that in the Senate, some of the 
very same sponsors of this type of legislation have been the very Sena- 
tors who have been seeking to guarantee large fees to attor- 

[S 16449] 

neys. The antitrust bill was supposed to be a great bill for the consumer, 
but actually, it is a bill providing for contingency fees for attor- 
neys. That is the gravamen of the bill, the thrust of the bill that caused 
the hangup here, in the Senate, that they were setting up a procedure 
by which 50 attorneys general throughout the country could farm out 
antitrust action to favored attorneys in their States. These attorneys 
would be able to collect vast fees on a contingency basis. The consum- 
er would get practically nothing out of the proceedings, but the at- 
torney could get fabulous fees. 

So, in this legislation, which does not do anything to protect civil 
rights, we are concerned about attorneys' fees: in the antitrust legisla- 
tion we were concerned about attorneys' fees. Then the distin- 



90 



guished Senator from Massachusetts (Mr. Kennedy) had Senate bill 
2715 pur on the calendar. I notice that lias been put over under "Sub- 
jects on the Table," and I assume it will not come up. But it provided, 
of all tilings, for attorneys' fees for attorneys appearing before Fed- 
eral agencies. 

I pointed out earlier that the defeat of the no-fault insurance concept 
in the Senate came largely by the opposition of damage suit attorneys 
throughout the country, trial lawyers throughout the country. By a 
very close vote, it was defeated in the Senate, or it was sent back to 
the committee: that is the actual action that was taken. 

So I am somewhat aghast at the concern of the Senate — not to rep- 
resent consumer interests: that is the facade of the matter. Actually, 
what is involved is the securing and the payment and the receipt by 
attorneys of fees. That is what was behind the antitrust proceeding. 
That is what caused the hangup here in the Senate, the fact that some 
of us objected to setting up 50 substations for the initiation of anti- 
trust proceedings, to let every attorney general in the country be a 
suboffice of the Department of Justice for bringing antitrust proceed- 
ing in their respective States. It enabled these attorneys general to 
farm cases out to a favored few of their cronies, who happen to be ac- 
tivist attorneys in this field, giving them the right to file these actions 
against companies and corporate entities, alleging the fixing of prices 
and great damage to the consumer. 

The truth of the matter is that the attorneys are the great benefi- 
ciaries under these proceedings, because the damage to the individual 
consumer might be measured in cents, or small sums. S3 or Si or $5. say. 
But aggregating those damages, as they are allowed to do under the 
bill, without proof of actual damage, merely arriving at a theoretical 
figure based on all of the sales throughout the country and applying 
tli at to the damage to an individual person, multiplying all of that 
and figuring the damage at the aggregate amount of all of the sale.-, it 
would run into a stupendous sum, up in the tens of millions of dollars. 
One settlement by a company was for $200 million, but some $40 million 
of that went to attorneys. 

So this bill is for the relief of attorneys and T think it ought to be 
named for the chief Senate sponsors. I do not feel that we ought to 
allow them to hide their light under a bushel. 

I think that Mr. Tunriey, of California, who introduced the bill, has 
not been here during the time the bill has been under consideration. 
Frankly. I am wondering why in the world the bill was brought up, 
anyhow, because it had its origin back in 1073. 

It was approved by a subcommittee of the Committee on the Judici- 
ary at that time, according to the committee report. Nothing more \»afe 
heard of it during that year or the following year, and it emerged then 
as an amendment in another bill, which was never brouirht up on the 
floor. I believe this bill has been on the calendar for some 3 months and 
has not been brought up until the closing days of this session, when we 
have many important bills on the calendar. Yet the leadership chooses 
to put it ahead of all other bills — all other bills that are available. They 
reach out and get this bill, this bill for the relief of attorneys, activist 
attorneys throughout the country. 



91 



I do not attach as much importance to the bill as do the sponsors 
of this bill, but since it is so important as to be given priority over all 
other matters on the calendar, it must be important. 

So I feel that the chief sponsors of the bill should be given the credit 
for this important landmark legislation. And, as in the case of the anti- 
trust bill, which was named for the sponsors of that legislation, the 
distinguished Senator from Michigan (Mr. Philip A. Hart), the dis- 
tinguished Senator from Pennsylvania (Mr. Hugh Scott), and Con- 
gressman Rodino of the House, so this amendment would name the bill 
to do honor to our colleagues here in the Senate by naming the bill for 
them. They are modest gentlemen, and they will not offer such an 
amendment, so it has fallen to the responsibility of the Senator from 
Alabama to take note of their sponsorship of this legislation. 

Indeed, it is a bill of 10 lines in length, so it took a great deal of study 
and a great deal of investigation, a great deal of research to come up 
with this bill. 

The author of this bill is the distinguished Senator from California 
(Mr. Tirnney), who is not here. The floor manager of the bill at this 
time — that honor has been passed around, but the floor manager of the 
bill at this time — is the distinguished Senator from Massachusetts (Mr. 
Kennedy). 

So I believe we should recognize their major role in the passage of 
this legislation, and their major role, I assume, in getting the leader- 
ship to put this bill at the top of the heap. 

I do not know why it is brought up at this time. Possibly some of us 
need some votes among attorneys in the upcoming election, because it is 
a bill for the relief of certain activist attorne3 T s in the country who do 
file suits of this sort. 

As I say again, Mr. President, it is not a bill that protects any civil 
rights, creates any ciyil rights. All it does is to provide for attorneys' 
fees. 

I hate to see the Senate actually considering this bill. I hope it will 
not be enacted into law, but if it is, those Senators who charted the 
course of this bill for the last 3 years since it first bobbed up there in 
the Judiciary Committee back in 1973. I think, should have the credit 
for the bill. That is the theory of the amendment. 

I call for the yeas and nays. First, Mr. President, I call for the yeas 
and nays on the Kennecty amendment since that is the pending amend- 
ment and then, following that, I would like for the yeas and nays on 
my own amendment. 

The Presiding Officer (Mr. Taft). It would at this point take 
unanimous consent to order the yeas and nays on the Kennedy 
amendment. 

Mr. Allen. I would not like to ask for unanimous consent, so I call 
for the yeas and nays on the Allen amendment. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Kennedy. Mr. President, I shall just take 1 minute. This is an 
amendment offered by the Senator from Alabama which, along with 
many of his others, has the clear purpose to delay and frustrate the 
very serious objective of this legislation. 



92 



Npne of the comments he makes with regard to this legislation de- 
t racts from its importance in insuring the protection of the civil rights 
of citizens of this Xation and the protection of our citizens against 
discriminal ion, including women and the blind, who would be included 
should the Kennedy amendment be accepted to this legislation. 

The arguments Have been made time and time again, and I have 
restrained myself from answering and repeating arguments to points 
that are laboriously, continuously raised by the Senator from Ala- 
bama. They have all been debated and discussed time and time again. 

The Senator from Alabama cannot name one lawyer in this coun- 
try who has become wealthy because of his work on the protection of 
the civil rights of citizens of this Xation. I ask him to name one — 
and his silence in this particular situation, I think, responds full well. 

We are not talking about the kind of attorneys' fees that were in- 
cluded in the antitrust bill. You do not get rich from protecting civil 
rights of citizens whether they are in my own city of Boston or in Bir- 
mingham. And the determination of fees is left, in any event, to the 
discretion of the courts. This is a concept which has been included 
in over 50 other statutes. It is an issue which has been debated and dis- 
cussed time and time again. It is just one more part of the distin- 
guished Senator from Alabama's continuing, and partially successful, 
effort to avoid or delay the passage of this bill. 

I move to table the amendment of the Senator from Alabama. 

Mr. Allen. Mr. President, will the Senator withdraw his motion 
for 1 minute \ 

Mr. Kexxedy. No : I make the motion to table, and I ask for the 
yeas and nays. 

The Presiding Officer. The motion is not debatable. Is there a 
sufficient second ? There is not a sufficient second. 
Mr. Kexxedy. I will yield to the Senator. 

[S 16450] 

Mr. Allen. Xever mind. The Senator suggested the absence of a 
quorum. 

Mr. Kexxedy. I suggest the absence of a quorum. 

The Presiding Officer. The clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

Mr. Robert C. Byrd. Mr. President. I ask unanimous consent that 
the order for the quorum call be rescinded. 

The Presidixg Officer. Without objection, it is so ordered. 

Mr. Robert C. Byrd. I yield to the Senator from Missouri. Recess 
for 2 minutes only. 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys 7 Fees Awards Act of 1975. 

[S 16451] 

Mr. Abovre zk. Mr. President. I ask for the yeas and nays. 
The Presiding Officer. The question is on agreeing to the motion to 
lay on the table. 



93 



Mr. Abotjrezk. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to lay on the table the amendment of the Senator from Alabama (Mr. 
Allen). The yeas and nays have been ordered, and the clerk will call 
the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh). the Senator from Michigan (Mr. Philip A. Hart), the Sena- 
tor from Indiana (Mr. Hartke), the Senator from Louisiana (Mr. 
Long), the Senator from Wyoming ( Mr. McGee), the Senator from 
Minnesota (Mr. Mondale), the Senator from New Mexico (Mr. Mon- 
toya), and the Senator from California (Mr. Tunney) are necessarily 
absent. 

I further announce that the Senator from Ohio (Mr. Glenn), and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from New York (Mr. Buckley), the Senator from 
Kansas (Mr. Dole), the Senator from Arizona (Mr. Goldwater), the 
Senator from Oregon (Mr. Packwood), and the Senator from Con- 
necticut (Mr. Weicker) are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 63, nays 20, as follows : 



[Rollcall Vote No. 629 Leg.] 



YEAS — 63 



Abourezk 

Bellmon 

Bentsen 

Biclen 

Brooke 

Bumpers 

Burdick 

Byrd, Harry F., Jr. 

Byrd, Robert C. 

Cannon 

Case 

Chiles 

Church 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 

Fong 

Ford 



Gravel 

Griffin 

Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Kennedy 

Leahy 

Magnuson 

Mathias 

McGovern 

Melntyre 

Metcalf 

Morgan 



Moss 

Muskie 

Nelson 

Nunn 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Sparkman 

Stafford 

Stevens 

Stevenson 

Stone 

Symington 

Williams 



NAYS — 20 



Allen 
Bartlett 



Hansen 
Helms 
H rusk a 
Laxalt 



Stennis 
Taft 



Brock 
Curtis 



Talma dge 
Thurmond 



Eastland 



Fannin 
Garn 



McClellan 
McClure 

Scott, William L. 



Tower 
Young 



94 



NOT VOTING — 17 



Baker Goldwater Mondale 

Bayh Hart, Philip A. Montoya 

Beall Hartke Packwood 

Buckley Long Tunney 

Dole Mansfield Weicker 

(ilenn McGee 



So the motion to lay on the table was agreed to. 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Eights Attorneys' Fees Awards Act of 1975. 

The Presiding Officer. The question is on agreeing to the sub- 
stitute offered by the distinguished Senator from Massachusetts (Mr. 
Kennedy). 

The Chair recognizes the distinguished Senator from South Caro- 
lina (Mr. Thurmond). 

UP AMENDMENT NO. 476 

Mr. Thurmond. Mr. President, I send an amendment to the desk. 
The Presiding Officer. The amendment will be stated. 
The legislative clerk read as follows : 

The Senator from South Carolina (Mr. Thurmond) proposes an 
imprinted amendment No. 476 : 

On page 1, immediately after line 9, add the following- new section : 
Sec. 2. Notwithstanding any other provision of law, no court shall award an 
attorney fee in any action involving the transportation of students in order to 
carry out an order or a plan of racial desegregation of any public school or local 
educational agency. 

Mr. Abourezk addressed the Chair. 

The Presiding Officer. The Chair recognizes the distinguished 
Senator from South Carolina. 

Mr. Abourezk. Mr. President, will the Senator from South Caro- 
lina yield I I wish to propound a unanimous-consent request, and I will 
yield back the floor. 

I ask unanimous consent that it be in order that on a motion to table 
this amendment, we can ask for the yeas and nays now. 

[S 16452] 

Mr. Thurmond. On a motion to table my amendment. 

Mr. .Ybourezk. Yes — before ha vino; been made. 

Mr. Thurmond. The Senator has not heard the discussion of it yet. 

Mr. Abourezk. I am not making the motion to table now. That is 
why I am asking at this time that it be in order to ask for the yeas 
and nays. 

Mr. Thurmond. The Senator means if he makes the motion. 
Mr. Abourezk. Yes. 

Mr. Thurmond. And the Senator does not know whether he is going 
to make it. because he has not heard the discussion. 
Mt-. Abourezk. That is probably true. 
Mr. Thurmond. Well, it is true, is it not ? 



95 



I have no objection. 

The Presiding Officer. Is there objection to the request that when 
and if a motion to table the pending amendment is made, the yeas and 
nays may be called for at this time? The Chair hears none, and it is 
so ordered. 

Mr. Abourezk. I ask for the yeas and nays on a motion to table. 
The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays are ordered on a motion to table, if and when 
made. 

Mr. Thurmond. Mr. President, I think it is obvious that there will 
be an increase in the number of suits brought, if this bill is passed. I 
am afraid thai many frivolous suits will be brought. 

One area where it is very apparent that we do not need more suits 
brought is in the area of busing. I have long opposed busing to achieve 
racial balance, but not to improve quality education. I am in favor of 
busing for quality education. I do not think that busing to achieve ra- 
cial balance is in the best interest of our Nation, and recent polls have 
shown that our citizens, both black and white, do not want it. 

Children should be permitted to attend their neighborhood schools 
rather than bused for miles and placed in a strange environment. 
P)iising as a means of desegregating schools has never been a sensible 
approach and it is not one now. On numerous occasions, I have urged 
my colleagues in the Senate to adopt measures which would end forced 
busing to achieve balance. 

In addition to the Treasons I have stated against forced busing, it is 
a waste of fuel in a time when this Nation faces an energy crisis. 

Forced busing has also caused a great deal of strife and discord in 
many communities across the country. Two of the most seriously hit 
have been Boston and Louisville. In order to emphasize the problems 
busing has caused in Boston. I shall at this time read a statement by 
the Honorable Louise Day Hicks, a member of the Boston City Coun- 
cil and former "Representative from the Ninth Congressional District 
of Boston, made before the Senate Judiciarv Committee on Novem- 
ber 11, 1975. 

Statement of Louise Day Hicks 

Freedom is dying in Boston, and. as is typical of events and conditions in 
modern-day America, freedom is only dying for poor people. That is the real 
tragedy of forced busing. Poor whites have been pitted against poor blacks to 
salve the conscience of the affluent. 

Poor whites and poor blacks are asked to undergo the tranma of forced desegre- 
gation while those more financially fortunate sit in their suburban livingrooms 
untouched by the reality of forced busing, protected by an invisible wall of af- 
fluence through which only they can pass. 

The poor are told forced busing is the Law of the Land. If this be true, then 
equity demands that every state in the nation comply, and yet that is not the case. 

Forced busing is a mockery of our entire constitutional system and the poor 
are asked to pay for it with their lack of tax loopholes, their dedication to their 
public school system, and their children. 

A decade ago, Mrs. Martin Luther King, Jr., denounced the Vietnam War lie- 
cause it basically discriminated against the poor. Only the poor, she said were 
asked to bear the bloody brunt of that conflict. 

Well, only the poor, locked into our central cities, are asked today to bear the 
traumatic and financial brunt of forced busing. 

Only the poor are forced to live the reality of the streets. Only the poor in the 
cities are under court order. Only poor children must leave the security of famil- 

79-586—77 S 



96 



lar neighborhoods for the hostility and fear that awaits across town. Only the 
poor parents of those children must spend their days with a more horrifying fear, 
the fear their children will not get off that hus. 

The conscience of this nation has tied to the snhurhs, where it now lies dormant, 
and well it should while there are courts and judges willing to soothe it with 
victimization' of the poor for social justice's sake. 

For Boston, that flight means more than just loss of conscience. It means that 
white flight is a reality that spells disaster for the city, emotionally and finan- 
cially, if forced husing is not prohihited and prohihited quickly. 

Just prior to the imposition of Federal Judge W. Arthur Garrity's Phase I de- 
segregation plan, there were 93,647 children enrolled in the Boston Public Schools. 
As of ( k-tolier 29, 197."). enrollment in the Boston Public Schools is 66,355 of which 
31,004 are white students ; 26,251 are black students, and 8,480 are other minority 
st udents. 

The figures reveal then that not only are there 27,312 students missing from 
the classrooms of Boston, hut the school system is now serving a predominantly 
I Jack and other minority enrollment. 

Furthermore, the figures speak of children either not going to school, enrolled 
in parochial or private schools, or, most unfortunately, for the future of Boston, 
enrolled in suhurhan systems where parents have taken up residence or are in the 
process of doing so. 

One need only look at the geographical location in Boston and manner of op- 
position to forced busing to verify the victimization of the poor inherent in our 
city's current plight. The poor cannot escape to the suburbs so they must stand up 
to the victimization with the only tool at their disposal — their emotions. 

Representatives of various cities, most notably Louisville, Kentucky, have ap- 
peared before this Committee with their own stories to tell. They have spoken 
of the fear of parents, both black and white, who refuse to jeopardize their chil- 
dren's safety by placing them on yellow school buses to be transported into an 
atmosphere of hostility and suspicion. 

I speak of the great city of Boston. I speak of a city composed of different yet 
rich neighborhoods. I speak of a culture that knows no counterpart in the 
rest of this nation, at least not anymore. I speak of a city rich in spirit, 
but fast becoming racially-polarized to the chagrin of those who love it. 

As it was 200 years ago at the beginning of our Revolution, the City of Boston 
is under siege. It is beset by internal disorder and external forces which, if left 
unchecked, will destroy the very essence of what has made Boston perhaps the 
most liveable city in the nation. 

Boston is people, but more especially, it is people in neighborhoods. During 
the latter part of the nineteenth century and continuing into the first decades of 
this century, Boston grew geographically by annexing neighborhood towns, 
which sociologists later called trolley suburbs. The annexation movement did not 
stop until the town of Brookline, now almost completely surrounded by Boston, 
refused to be annexed. 

The towns that were annexed, however, remained towns, if not governmentally, 
then at least socially and psychologically. Even with the advent of a rapid transit 
subway and bus system that made access to the downtown area relatively easy, 
residents of the annexed towns still thought of themselves, and still do, as first 
and foremost, citizens of the towns or neighborhoods as they are now described. 

Stop anyone on a downtown Boston street today and ask their hometown. 
Nine times out of ten a native Bostonian will not respond with "Boston." Instead 
the interviewer will hear, "South Boston," "East Boson," "West Roxbury," "Hyde 
Park." "Dorchester," "Charlestown," "Mattapan," "Roxbury," "Allston," "Brigh- 
ton," or "Jamaica Plain." 

These are all Boston's hometowns, and there are several more — including the 
Back Bay, Beacon Hill, the West End, the South End, and the North End, all 
sections of the original Boston before it began the annexation process. 

Each of these hometowns has a distinct flavor and each has a determined 
civic pride. The news media has picked up that flavor and pride to blame Boston's 
present problems on the ethnic makeup of the neighborhoods. The Irish of South 
Boston are blamed. The Italians of the North End or East Boston are found to 
he at fault. The media says that they should know better. 

The fact of the matter is they do know better. They know better than anyone 
rJse that Boston is a sociologist's nightmare. They know because they live with 
it and they have accommodated themselves to it. They know because it has made 



97 



their city vibrant and alive with people of varying cultures and backgrounds 
Learning to live with each other. 

The large Albanian population of South Boston knows its hometown is no 
longer predominantly Irish as does the large Lebanese and Greek population of 
West Roxbury. The only section of the city that still resembles anything of an 
ethnic enclave is the North End, and even that neighborhood is changing with a 
Large influx of students from Boston's many univerities. 

Traditions have endured, of course, but their existence does not necessarily 
mean that their originators are still in the same neighborhoods or in the city at 
large for that matter. 

Today, the St. Patrick's Day Parade in South Boston is more a celebration of 
community than of ethnicity as is Bunker Hill Day in Charlestown or Columbus 
Day in the North End. 

And what are the values of these neighborhoods? They are the values of low 
and middle income people everywhere. They are the values based on an adherence 
to the work ethic. They are the values of a people overtaxed to the point where 
they are eligible for food stamps and they cannot understand why, and they can- 
not understand why their municipal property tax rate must bear the full brunt of 
the bill for forced busing when it was imposed by a federal judge and supported 
by the State Board of Education. 

[S 16453] 

In each of the working class neighborhoods of Boston such as South Boston and 
Charlestown, the emotionalism displayed is commensurate with the frustration 
that accompanies the inability to escape. In the more affluent neighborhoods, 
"For Sale" signs preclude vociferous opposition, but "For Sale" signs signify 
opposition nonetheless. It is worthwhile to note that in one working-class neighbor- 
hood of Boston, Dorchester, defeatism has already taken hold and property 
owners are abandoning their homes, actually defaulting on their mortgages to 
attain asylum in the suburbs. 

If the current home market situation continues in conjunction with the present 
economy, it will not be long before parents in more affluent neighborhoods take 
their cue from Dorchester and also default. Many right now are holding down 
two mortgages, one urban, one suburban, and it is not difficult to determine which 
mortgage will eventually be defaulted. 

Realtors in the most affluent section of Boston, West Roxbury, report that 
there are 800 homes for sale in that neighborhood. With a lack of buyers, the 
area is ripe for blockbusting and redlining, thus opening another avenue of still 
more victimization of still more poor people. 

The flight of the white middle class portends economic disaster for the city of 
Boston which depends almost entirely on its property tax revenue to survive. 
With a steady erosion in middle class population, those financially unable to leave 
are required to pay increasingly higher bills caused by forced busing. 

Phase I busing cost the taxpayers of Boston $18,169,000. The projected cost for 
Phase II this year has been tentatively set at $26,360,000. When those costs are 
itemized, one is struck by the magnitude of the security problem in the city be- 
cause of forced busing. The buses alone cost the taxpayers of Boston $5,000,000 
during the last fiscal year, but security in the form of police in and around the 
schools together with equipment such as metal detectors at the doors of schools 
cost $8,050,000. 

The Phase II figure for buses has been projected at $6,500,000. The cost of secu- 
rity personnel has not yet been projected, but a figure of $1,550,000 has been set 
for security equipment, an increase of $700,000 over last year. It is known that 
police protection is costing the taxpayers $95,000 per day. and the final figure 
must wait until the police, if ever, are withdrawn from the schools. 

The financial costs of forced busing are horrendous enough, but the cost in 
terms of traumatic experiences for our schoolchildren and their teachers is 
startling. According to testimony presented to the Ways and Means Committee 
of the Boston City Council at public hearings on civil rights violations, assaults 
on teachers have increased 150 percent in just one year. Mr. Martin Foley of the 
Boston Teachers Union testified to this tragedy representing a complete break- 
down in discipline within the public school system of Boston. 

The figures he presented represent cases that were actually processed in court. 
Mr. Foley contends that as many as three times the number recorded were com- 
mitted and went unchecked because of the tendency of school administrators to 



98 



Ignore them for the sake of their careers. The situation resembles the Vietnam 
body count syndrome in reverse. 

Forced busing, whenever and wherever it has been imposed on a great city, has 
inevitably Led to the flight of the middle class, disruption in classrooms, destruc- 
tion of neighborhoods, defeatism among the remaining lower-income groups, and 
segregation. Professor James Coleman of the University of Chicago recently 
appeared before this Committee and documented there devastating results of 
forced busing, and he has spoken out against further implementation by the 
courts. 

The irony in the whole situation is the claim of the N.A.A.C.P. that forced 
busing brings black children into white, middle class educational environments 
where they have a better chance at achievement. How can that theory be validated 
when in city after city, the white middle class has packed up and taken its quality 
edtu at ion with it to the suburbs where it is well out of reach of the city's school 
buses? 

Nowhere has it been proven that forced busing leads to quality education. Dur- 
ing the 1972-1973 school year, for example, out of 195 schools there were 62 
racially imbalanced schools in the City of Boston. Today, out of 168 schools, that 
number has risen to 115, and unlike 1972-73. the schools are predominantly 
black. Forced busing has created its own Catch 22 and the end result can only 
lead to resegregation. 

Black cities surrounded by white suburbs is not integration, and yet the game 
plan appears to remain unaltered. In Boston, for instance, leaders of the black 
community continue to support forced busing while calling for control of their 
neighborhood schools. Why ask for control of neighborhood school policy when 
the children that should be in those schools are scattered from one end of the 
city to another? 

It is ludicrous if one's goal is quality integrated education, but quite acceptable 
if one's goal is political domination. Supreme Court Justice William O. Douglas 
saw the handwriting on the wall when he dissented in the recent Detroit metro- 
politan decision. 

Justice Douglas saw through the game plan and so has a very definite majority 
of the American people, both white and black, who have expressed their opposi- 
tion to forced busing. 

They know that as in ending our involvement in Vietnam, the prohibition of 
forced busing will not take place overnight. The people so demanded, however, 
that steps be taken immediately to begin to end the madness of forced busing 
before it completely destroys our cities, and renders our suburbs lily-white sanc- 
tuaries from the Teality of that destruction. 

The children and parents of the City of Boston turn now to the Congress of 
the United States because all judicial avenues of redress open to them have been 
closed by the intransigence of Judge W. Arthur Garrity, Jr., of the United States 
District Court for the District of Massachusetts. 

The judge has consistently refused to grant motions filed by parties intent on 
being recognized as intervenors in the city's desegregation suit, Morgan versus 
McDonough. By dening these motions, Judge Garrity has proven himself to be 
unable to rationally make decisions that are in the best interests of those most 
vitally affected, the children and parents of Boston. Instead, he has allowed Mor- 
gan versus McDonough to stand as a monument to the destruction of a great 
American city and the denial of the right of parents to make decisions affecting 
the lives of their children. 

In addition to my testimony today, I have made available to each Member of 
this distinguished Committee, a copy of a Resolution approved by the Boston 
City Council last Monday commending the AFL-CIO Labor Council of the Com- 
monwealth of Massachusetts for its own Resolution in support of a constitutional 
amendment to prohibit forced busing which it adopted in state convention last 
Friday. 

The action by the state AFL-CIO state convention is noteworthy, not only be- 
cause it was approved in the face of opposition from the national AFL-CIO hier- 
archy, but because it demonstrates the determination of the workingmen and 
women of the city of Boston and of the Commonwealth of Massachusetts to see 
this stru^ge through to the eventual enactment of a constitutional amendment 
to prohibit forced busing by the 94th Congress. 

In addition. I have enclosed copies of another Resolution adopted by the 
Boston City Council, calling upon the Massachusetts Congressional delegation to 



99 



introduce a constitutional amendment to prohibit forced busing into the 94th 
Congress, and a letter I personally forwarded to Gerald R. Ford, President of 
the United States, calling for his support of such an amendment. This nation 
will sleep an uneasy peace until this Congress realizes that not only Indians, 
Chicanos and Blacks but also poor and middle income whites in our cities are 
living a nightmare of financial insecurity and emotional despair made unbear- 
able by forced busing. Gentlemen, a generation of bitterness or understanding 
waits for you to act. Thank you. 

Mr. President, that was a statement made by the Honorable Louise 
Day Hicks before the Senate Judiciary Committee. Mrs. Hicks, as I 
stated, is a member of the Boston City Council and a former Congress- 
woman from the Ninth Congressional District of Massachusetts. 

Mr. President, I felt this statement by Mrs. Hicks should be called 
to the attention of the Senate in connection with this amendment which 
I have offered. 

I present now to the Senate the testimony of Harvey I. Sloane, M.D., 
mayor of Louisville. Ky., which was presented to the Committee on 
the Judiciary of the U.S. Senate. 

Mr. Durkin. Will the Senator yield for a question without losing 
his right to the floor ? 

Mr. Thurmond. Mr. President, I ask unanimous consent that I might 
yield to the distinguished Senator from New Hampshire without los- 
ing my right to the floor. 

The Presiding Officer. Is there objection to the request? 

Hearing none, it is so ordered. 

Mr. Durkin. How many pages is Mr. Sloane's statement ? 
Mr. Thurmond. Twenty-one and a half. 
Mr. Durkin. I thank the Senator. 

Mr. Thurmond. Mr. President, Mr. Sloane's testimony should be of 
interest to this body. 

Testimony of Harvey I. Sloane, M.D. 

I would like to express my appreciation to the distinguished Chairman and 
members of this Committee for holding hearings on this matter of critical impor- 
tance and interest to the citizens of this country. 

The issues surrounding the best way to integrate schools, and particularly the 
issue of busing for school desegregation, are so controversial and so important 
that they deserve to be debated on a national level. Congress offers the logical 
and appropriate forum, and I hope these hearings will be the beginning of a na- 
tional debate in the full Senate and Congress. 

A survey of American public opinion published this month by the Gallup orga- 
nization shows that up to 80 per cent of the population is opposed to the wide- 
spread use of busing as a remedy to desegregate our public schools. However, a 
majority of those interviewed supported the goal of full integration of the schools, 
so the question becomes how we can find another remedy besides busing that 
will offer an equal opportunity for quality education to all. 

Unless the Congress fully considers this issue, a large segment of the popula- 
tion — and particularly those already under court orders — will continue to feel that 
their government leaders are slowly taking away their freedom of mobility and 
choice. 

I am here today to offer for your considera tion an alternative approach to mas- 
sive, cross-community busing, which I strongly 

[S 16454] 

oppose as a method for achieving school desegregation. But first I want to toll 
you a little about my own background and interest in this area. 



100 



T am a physician, and my medical work before I became Mayor of Louisville 
took me Into a variety of situations where I learned firsthand the problems of 
race and economics that are at the heart of our school situation today. 

I came to Kentucky in 19©$ as a member of President Kennedy's relief team 
tor Appalachia. There I save medical service to thousands of indigent residents, 
moi\ of t hem children. From 1907 to 1972, I directed a neighborhood health 
center in one of Louisville's inner-city neighborhoods. In 1973, I took office as 
Mayor of Louisville. 

1 have seen t lie problems that low-income families have, whether they live in 
mostly white communities in Appalachia or mostly black areas of a city like Louis- 
ville. 1 have seen the kinds of schools that their children attend, often woefully 
underfunded and inadequate. 

I understand the goals of desegregation in our public school systems — goals 
aimed at erasing tlie gaps between black and white children, between the 
poorer city and wealthier suburbs. I strongly support these goals . . . what I 
cannot support is the lack of imagination which results in a federal court order- 
ing a single answer to the complex question of school desegregation. 

Massive, cross-community busing is creating serious problems in Louisville. 
Our community has been polarized, and the fabric of relationships that makes a 
community strong has been torn apart. Parents who send their children to 
school in defiance of boycotts are shunned by relatives, friends and neighbors. 
Businesses that don't display anti-busing signs lose customers. School bus drivers 
have been threatened. Police officers assigned to control demonstrations have been 
assaulted. Government officials who pledge to enforce the law and maintain peace 
are repudiated. 

And the ugly flames of racism have been fanned in a community that has long 
)>e<m proud of its record of moderation in race relations. 

In 1954 and 1956, following the Supreme Court's decision in the Brown I and 
P.iown II cases. Louisville and Jefferson County peacefully integrated their 
school systems. We were the first "southern" city to do so. and the head of the 
Louisville school system was called to the White House and presented an award 
by President Eisenhower for this achievement. 

School integration continued through the next decade with both the city and 
county school systems passing the approval of HEW school inspections. 

In the early 1960's our communty approved a public accommodations law and 
an open housing law. In 1963, Louisville was named an "All Ajnerican City" for 
our progress in race relations. 

Our current involvement with school desegregation and the courts began in 
1971 when the Jefferson County School Board failed to come to an agreement 
with the U.S. Department of Health, Education and Welfare on the extent of 
desegregation needed in county schools, and a suit was filed by two local groups 
to force desegregation of the county schools. Ten months later, another local unit 
brought the City school system into the desegregation case. 

As in many other cities, the case went up and down the ladder of appeals, 
reversals and orders. By the spring of 1975. the case had progressed to the point 
that all sides expected to have at least a year to prepare for full desegregation, 
and governmental and school officials began planning in this direction. 

Then, on July 17, 1975, the United States Court of Appeals for the Sixth Circuit 
reversed its own earlier decision, and ordered immediate and total desegregation 
of our school system in just six short weeks. 

This order, which resulted in a desegregation plan that involved busing 22,600 
school children for the purposes of desegregation, came on the heels of the 
merger of the Louisville and Jefferson County school systems, which had oc- 
curred on April 1. just 3% months earlier. 

The plan for integration was prepared in just two weeks and released on 
Julv 30. 1975. This left the School Board 35 days to work out transportation 
and attendance schedules for 124.000 children in 165 schools ... to reassign 
hundreds of teachers and school administrators, to hire more than 250 monitors 
for the school buses, and to handle a myriad of other details. 

Imagine the strains on a school system and a community preparing for 
implementation of this desegregation plan, and struggling at the same time with 
the adiu^tments required in a merger involving two school systems with decades 
of fiifferent philosophies and policies. 

What made the difference between the peaceful integration of the school svs- 
rera in 1956. and the turmoil that has surrounded the expansion of racial mixing 
in 1975? The differences can be measured in time and method. 



101 



In 1956, the Louisville School Board took 15 months to develop an integration 
plan, and to get the community prepared for this major social change. Jefferson 
County schools were assimilating their small number of black students into 
county schools. In 1975, the school board had 35 days to get ready, and had little 
opportunity for community preparation. 

In 1956, Louisville used several methods of achieving integration, including 
altered attendance zones, open transfer and planned new school construction. 
The 1975 plan made changes in attendance zones and closed some schools, but 
relied mainly on busing to achieve a mathematical desegregation formula. 

The school integration that we accomplished in 1956 was just as radical a step 
at the time as the court-ordered busing of 1975. But the plan of two decades a so 
did not require school children to become captive commuters to achieve racial 
integration. We did not pay the price of a polarized community in 1956, and 
we cannot afford to pay that price today. 

Let me sketch for you now in more detail the effects, in Louisville and Jefferson 
County of the July 17 order b.v the Sixth Circuit Court. 

THE EFFECT ON THE EDUCATIONAL SYSTEM 

Under Kentucky law, local Boards of Education are funded by the state based 
upon the average daily pupil attendance. If a pupil does not come to school, the 
School Board eventually loses funds from the state. 

The Superintendent of Jefferson County schools last week estimated that 
anti-busing boycotts by students so far this fall could cost the school system the 
loss of $3 million in state aid. He estimated that the cost of implementing the 
busing plan in this first year would run about $4 million. He acknowledged that 
more state aid for Jefferson County schools would be necessary, but he is con- 
cerned that public opposition will prevent any such help coming from the 1976 
state legislature. 

The effect of this financial loss on the school system can only mean a lower- 
ing of standards for educational quality. 

We are also starting to see an increase in the number of private schools in 
Louisville, which will mean a further drain on the pupils and resources of our 
public school system. At least five private schools have been started already as a 
result of the court order, and seven "Christian'' private schools report a 40' per 
rent increase in enrollment over last year. 

Although Kentucky law places stringent accreditation requirements on such 
schools, we expect to see more of them in response to the demand from parents 
who are deserting the public schools because of the busing and desegregation 
plan. 

This will follow a pattern that has been repeated across the South in the wake 
of desegregation activity in the schools. The Lamar Society, a non-profit educa- 
tional organization in Washington, estimates that there now are some 4.000 
private segregated academies in the Southern states. Memphis lost some 25,000 
white students from its public schools over the last two years to about 100 new 
private academies, most of them segregated. Charlotte-Mecklenberg had more 
than two dozen segregated academies within two years after its court-ordered 
busing plan, with an enrollment of some 10,000 white children. And since 1968, 
according to the Lamar Society, Jackson, Mississippi, public schools have lost 
one-half of their white student population — 9.000 children — to private segregated 
academies. The effect is resegregation, not desegregation. 

The shift in teacher and principal assignments required by the desegregation 
plan has lowered morale and created confusion in Louisville's schools. The huge 
job of trying to merge the policies, staffs, and administrative differences of two 
school systems has been tremendously complicated by the timing of the court's 
order, and in turn has made implementation of the plan more difficult and 
cumbersome than it would be otherwise. 

Because of the short preparation time, the School Board has not had the 
opportunity to hire and train the most qualified bus drivers. So the safety of 
many children has been endangered and school bus accidents have increased in 
greater proportion than the increase in the number of miles driven. Many 
experienced drivers, almost one-fifth of the total, resigned in response to threats 
and intimidation from anti-busing advocates. 

The School Board did not have time to order the extra buses it needed to 
carry out the desegregated plan, so children must be transported in two shifts, 
creating confusion and complications in the transportation schedule. In the 



102 



lirst weeks of implementation, many buses were off schedule and some didnt 
A rrlve at all, forcing children to miss class completely. 

The buses that the School Board did have on hand were in many cases inade- 
quate and in need of replacement. Some buses were borrowed from neighboring 
counties. We have been lucky so far that we have not had any serious injuries 
or deaths in accidents involving school buses. 

We found that our problems were compounded not only by an arbitrary court 
order, but by international relations as well. When the School Board checked 
[hto the delay in delivery of some replacement buses it had on order, they found 
they had to wait in line behind the King of Saudi Arabia, who was ordering 
school buses to carry thousands of Moslem pilgrims to Mecca. 

In <>ur Mecca, the average student bused for desegregation rides for two hours 
or more a day on four separate school buses. Elementary students leave for school 
at different times than older students and the resulting disruption in family 
schedules affects both children and their parents. 

Finally and most importantly, education within the classroom is suffering. 
Some 10 percent of the parents still are keeping their children home from school 
in protest of busing, and these children in effect w T ill lose one-half or one full 
year of schooling. Concern over transportation and safety prob- 

[S 16455] 

lems kept thousands of children home during the opening days of school, so many 
students are behind in their normal schedules. 

Anti-busing protests in the community, especially on or near school property, 
detract from the healthy educational climate so necessary to the school environ- 
ment, A recent report showed that suspension of students was up 40 percent in 
September compared to the same month last year, with the majority of students 
suspended for cutting classes to participate in anti-busing protests. 

Extra-curricular activities, including athletics, school bands, student council 
activities and special clubs, are suffering from a lack of participants and th€ 
mechanical problems of missing the last bus home. Rumors of incidents within 
the schools are rampant, and though most are untrue, they unsettle students 
and parents alike. 

Last week I completed my annual City Walk through the neighborhoods ol 
Louisville, a program I use to get out among the people and sample community 
opinion. For 70 miles over 18 days, I heard comments and complaints about bus- 
ing. Some clays I was joined on my walk by hostile demonstrators, but most often 
the people I met were frightened, bewildered parents. They were concerned about 
the safety of their children on the school buses and in the schools. They worried 
over whether problems of classroom discipline and confusion would hinder theii 
children's education. 

This is the third year I have taken a City Walk, but it is the first time I have 
witnessed such alienation and such racial polarization because of one issue — 
busing. 

Busing means different things to different people. Among those I talked with, 
busing for many black families represents an opportunity to break out of the 
mediocre educational pattern they have been forced to accept in the past. So they 
suffer the inconvenience of busing, and the strains of court -imposed integration 
formulas that make them a minority in every school. Black students will be 
bused eight or nine out of their 12 years under our desegregation plan; white 
students will be bused a maximum of two years because of the racial makeup of 
the school system. Black parents are worried about the safety of their children in 
the majority-white schools, and many call for alternatives to busing to give their 
children the educational opportunity they seek. 

For working-class white families, busing is only the last straw in a series of 
government-imposed programs that they see threatening their individual free- 
dom and way of life. Some of the most vocal opponents of busings are those fam- 
ilies who have moved out of the inner city to seek what they see as a better 
life — better housing, better schools, better jobs, better opportunity for their chil- 
dren. Now, in Louisville, their children are being bused back into the very neigh- 
borhoods they left behind. Many of these busing opponents admit that they have 
not been involved in protest movements before but they are getting involved 
now because their own children, their hope for the future, are affected. 

For wealthier families, who can afford to send their children to private schools, 
busing is really someone else's problem. But they will suffer from the deterioration 



103 



in racial relationships and community trust along with everyone else. And all will 
feel the impact if antibusing turmoil discourages economic expansion or causes 
further loss of confidence and support for the public school system. 

Racial intolerance is a definite part of the opposition to busing in Louisville. 
But there are other reasons, too, and they deserve attention. In the end, I think 
the majority of our citizens recognize the importance of everyone having an equal 
opportunity to quality education, and they realize that integration must occur 
for this to happen. But when confronted with the disruption of massive, cross- 
community busing, they tell me : It costs more ... it is disruptive ... it detracts 
from the educational process. What is the purpose? What is being accomplished? 

If we truly want integration of our schools and our society, we must find an- 
other way than massive busing to bring it about. Our public school system cannot 
take the strain of arbitrary court orders that ignore social realities, and our com- 
munity cannot function when hatred and mistrust replace brotherhood and tol- 
erance. 

THE EFFECT ON THE COMMUNITY 

The busing issue has polarized our community to an alarming extent. Disruption 
and discord have become a daily part of our lives. 

Nearly every day or night since September 4, the opening day of school, there 
have been demonstrations, meetings, boycotts or protests relating to the busing 
issue. Most of these have occurred in the outlying suburbs south of the City, 
where resistance to busing is strongest. School buildings and school buses have 
been vandalized. Businesses in areas where busing opposition is heavy have been 
ordered to put anti-busing signs in their windows, and to close on certain days 
in protest of busing. If they refuse, they are boycotted, and in some cases have 
been vandalized. Service station operators intimidated by busing opponents have 
refused to sell gas to school buses. 

Several of our large industries have curtailed production one or more days 
as workers stayed home to protest busing. In one truck assembly plant, where 
workers were disciplined for unauthorized absences, some equipment was sabo- 
taged in retaliation. Busing foes have urged their followers to make late "pro- 
test" payments on their property tax bills, which partly support the school system. 

Our community institutions have felt the backlash. The Metro United Way 
opened its yearly campaign this month with expectations of losing $250,000 or 
more because of calls by anti-busing advocates to withhold contributions. They 
charge that the agency supports the NAACP, the Kentucky Civil Liberties Union 
and other groups with liberal stands on school integration and busing. This is 
not true, but the effect is the same. The Catholic Archdiocese recently completed 
its annual fund drive amid boycott threats from contributors over the busing 
issue, though they felt only a slight adverse effect. 

THE EFFECT ON LOCAL GOVERNMENT 

Like most cities in this country, the City of Louisville is struggling to maintain 
adequate services to our citizens on a very stringent budget. In this fiscal year, 
we had a contingency fund of about $1.2 million for unexpected expenditures. 
After the July 17 court order, anticipating some extra costs in connection with 
the desegregation plan, we put a freeze on all personnel hiring in City Govern- 
ment, and I asked the Board of Aldermen to restrict future appropriations to 
emergencies. 

Even with these moves, it will hurt to absorb the bill of $602,570 that we have 
spent so far in connection with the plan. This is one half of our surplus funds 
for the entire year, and one per cent of our total City budget. We have reached 
the point where any additional expenditures for desegregation purposes could 
force us to cut back City services to maintain a balanced budget. 

Under the court order, the School Board is responsible for implementing the 
desegregation plan. Local government is not a party to the desegregation suit, 
and has no legal jurisdiction over school operations. 

Local government's responsibility in the desegregation plan has been to main- 
tain the public peace and safety, and particularly to guard the safety of school 
children. The District Judge included an entire section in the plan outlining the 
public safety policies to be followed, and we have tried to comply with the court's 
orders. 

The majority of our costs — a total of $539,000 — went to pay overtime for our 
Louisville police officers, who were on 12-hour shifts for 12 days before and after 



104 



the opening of schools. This included six days of 100 city police officers riding 
security detail on school buses to assure the safety of children. 

We also spent $13,500 in overtime pay to place one fireman in each City school 
during the first three days of classes, to check out rumors and save unnecessary 
runs of fire equipment. Other desegregation-related costs paid for overtime and 
supplies in Traffic Engineering and Public Works Departments, and in our 
Emergency Medical Service. 

The City has recently allotted $S9,51o in funds from our CETA program to 
hire 14 security guards in the schools, because the School Board did not have the 
money to hire them. 

This does not take into account hundreds of thousands of dollars spent by 
Jefferson County and the State of Kentucky for desegregation-related activities. 
The State supplied Kentucky State police and the National Guard to the com- 
munity during the troubled days of demonstration and protests following the 
opening of school. 

And these costs are only the most direct costs of desegregation plan on local 
government We have absorbed additional thousands of dollars in staff time and 
energy that has diverted our attention from other city government responsi- 
bilities. 

My point in coming here today has been to let you know the effects of the 
precipitous order of the Sixth Circuit Court in our community, and to suggest 
to you an alternative judicial approach for school desegregation cases. 

Some members of Congress have proposed adoption of a Constitutional amend- 
ment forbidding assignment of students to schools on the basis of race, or restrict- 
ing the use of busing for school desegregation. I have publicly asked that the 
Constitutional amendment question be brought before the full Congress for 
debate and resolution. I think that the American people want a decision. 

However, I have yet to see a Constitutional amendment which appears to 
offer a practical answer to the mandate posed by the fourteenth amendment. In 
fact, passage of any one of the amendments proposed to date could well have the 
effect of controlling much more than busing. Given the just concern of the federal 
courts for desegregating schools under the demand of the Fourteenth Amendment. 
I think a federal court faced with a strictly drawn anti-busing amendment 
might well resort to even less palatable remedies for achieving school desegrega- 
tion. 

With the courts' past record of ordering simplistic solutions to this complex 
question, we could well see court orders that force racial quotas in housing sales, 
or that assign students to schools on the basis of family income as a way of 
guaranteeing equal educational opportunity. The cure could well be worse than 
the malady in such cases. 

Moreover, the Constitutional amendment process is slow and intricate. And 
Constitutional scholars have serious doubts about the extent to which an amend- 
ment would affect desegregation plans existing at the time of its adoption. 

I think there are other legislative remedies short of a Constitutional amend- 
ment that could be more quickly implemented and more effective. I want an 
alternative to massive, cross-community busing that will work now for Louis- 
ville, and for those communities facing court-ordered busing in the future. More 
than 20 major school desegregation 

[S 16450] 

cases are pending around the country in which federal district courts are soon 
to issue remedies. 

The remedy I propose deals with the heart of what I believe is the problem — 
namely, the limitations of the federal court system to deal with such a complex 
issue as school desegregation. 

A federal judge assigned to a school desegregation case is placed in the role of 
school administrator, educator, policeman and social worker ... a role that no 
man could reasonably be exported to fulfill. He is often required on short notice, 
withont time to seek adequate expert assistance, to draft complicated pupil 
□ sportation. and assignment plans. 

And he is required to develop this plan in the traditional adversary setting of 
the courtroom — an atmosphere not exactly conducive to the complex delicacy of 
thi< operation, In too many instances, the plaintiff appears on the one hand 
requesting the most radical solutions, with the defendant School Board propos- 
ing that the Judge take little or no action. 



105 



No person in these situations is there to present the desirable middle ground to 
the Court. The experts, if any are employed, are hired by the parties to the 
litigation, and major educational matters are decided by a federal judge who 
usually handles only one desegregation case in his lifetime. 

School desegregation plans should be continuously monitored and adjusted 
to reflect changing housing patterns, changing pupil enrollment and population 
shifts. The federal courts are not adequately equipped to provide this kind of 
monitoring. 

Complex school desegregation plans also require extensive funding if long- 
term success is to be achieved. Congress has expressed its opposition to busing 
by denying funds for busing to the U.S. Department of Health, Education and 
Welfare, and President Ford has strongly expressed the need for ''more flexi- 
bility" in the courts to examine alternatives other than busing for achieving 
quality education. 

If quality education and desegregation are to be achieved without basing, 
then both the President and Congress must be willing to pay the monetary costs 
of providing alternatives. And this financial commitment must be coordinated 
with school desegregation plans, which is not being done today. 

I propose that Congress create a special judicial commission to oversee all 
existing, pending and future school desegregation cases mandated by the courts 
or ordered by HEW. This Quality Education Commission would be composed of 
a number of commissioners appointed for a term of years by the President of the 
United States. 

The Commission would employ on a full-time basis experts in the fields of 
education, school administration, human relations, desegregation, law, psy- 
chology, sociology and other fields to aid in preparing and reviewing all desegre- 
gation plans. 

HEW. working with the Commission, would be required to make lump sum 
grants to school districts for programs to promote desegregation, as well as 
incentive payments to parents who voluntarily participate in desegregation 
efforts. 

The Commission would operate with a two-level hearing system. At the trial 
hearing level, two judges of the Commission would be appointed to hear each 
case, along with one local judge appointed by the Governor of the state involved 
in the desegregation case. 

The local hearing panels would have an administrative officer to provide day- 
to-day supervision of the local desegregation plan, and to call for modification of 
the plan when such conditions as housing patterns or population shifts require 
changes. A speedy appeal would be provided to the entire Commission from the 
decision of the local panel. 

The Quality Education Commission would be in a much better position than 
our federal courts and even HEW to follow the Congress' mandate in the Equal 
Educational Opportunity Act of 1974, which calls for an exploration of alterna- 
tives to busing before compelling extensive busing. No Supreme Court case re- 
quires that busing be the only alternative explored by the court in drawing 
desegregation plans. 

But federal judges who do not have the expertise or the resources to adminis- 
ter a school plan that might encompass new school construction, pairing of 
schools, magnet schools and the like, find it easy to settle for a simple mathe- 
matical apportionment of the races between all schools. 

Unlike the federal judge, the Quality Education Commission would not hear 
just one desegregation case in its lifetime. Its hearing of many cases, coupled 
with the expertise to explore and implement alternative solutions, would result 
in desegregation remedies that are sensitive to local needs and to the long-range 
goals of racial harmony and community trust. 

The Commission would not only have the staff and the time to study alterna- 
tives to busing — it would have available the funds to experiment with innova- 
tions that could greatly reduce the need for busing or eliminate it altogether. 

The precedent for establishing this independent Commission or Court is well 
founded. Congress has established courts to hear a variety of special cases in 
specific areas. Labor matters within the federal system are handled by the Na- 
tional Labor Relations Board. Patent, copyright and trademark matters are all 
considered by a special court — the Court of Custom* and Patent Appeals. 

There are special customs courts and courts designed to allow litigants to 
brine: claims against the United States. It is difficult to argue that school desegre- 
gation matters don't require and deserve the same type of expert treatment pro- 
vided in patent, copyright, trademark, customs and federal claims cases. 



106 



Attached to this testimony is a document describing in detail the structure of 
the Commission, plus a legal memorandum supporting the creation of such a 
Commission. 

U this Quality Education Commission had taken jurisdiction of the Louisville 
desegregation case in 1971, 1 believe we could have avoided many of the problems 
we are experiencing today in our schools and in our community. 

The Commission's staff of experts would have been available in preparing the 
plan. They would be free of the bias of the plaintiff or defendant, and could 
approach the case more objectively. 

The Commission could have brought a depth of experience and understanding 
lo the case that I don't think could be expected from federal judges who 
handle a variety of different matters every day. Realizing that a complex 
desegregation plan cannot reasonably be implemented in only six weeks, the 
Commission would have allowed sufficient time to thoroughly study and experi- 
ment with alternatives for achieving desegregation without massive cross- 
community busing. 

The Commission would have available money to help the local School Board 
actually implement innovative programs as alternatives to busing, not just to 
talk about them or assume that they won't work, as is often the case now. 

These funds could support studies of longer-range needs such as new school 
construction combined with school closings. And finally, the Commission would 
be working today evaluating results of experimental programs, and evaluating 
data relating to changing housing patterns, population shifts and other indica- 
tors. This research would be used to help modify the plan if necessary. 

In closing, let me summarize the course of action I propose. 

Congress must act with all deliberate speed to take meaningful action on the 
busing issue, unlike many of the moves taken so far, which hold out false hopes 
of remedy without addressing the central issue of busing and its effects. While 
bills are bottled up in Committee, and votes are taken on meaningless measure- 
that restrict busing without providing any alternative remedies, thousands of 
school children in cities like Louisville are suffering the effects of a mismanaged 
social experiment that is irresponsible and counterproductive. 

I believe the Quality Education Commission I propose is a meaningful answer 
that will provide workable alternatives to busing, and an opportunity for quality 
education for all school children. 

We are about to celebrate our 200th anniversary as a nation, and part of the 
heritage that we will celebrate is our national talent and ingenuity for solving 
unsolvable problems. We have built a great nation, and have applied our 
energies to conquering disease, exploring outer space, promoting world peace, 
and providing a good life for all. 

We have the way to deal with the cause of desegregation in our schools and 
in our society. All we need is the will — the will that says we will not accept sim- 
plistic solutions like busing until w r e have honestly tried and supported all of 
the many other alternatives that are more fair, more workable and more 
acceptable to the American people. Thousands of concerned parents in Louis- 
ville. Kentucky, both black and white, are waiting for Congress to accept this 
challenge. Thank you. 

Mr. Thurmond. Mr. President, I have presented the statement of a 
member of the City Council of Boston, Mrs. Hicks, a former Congress- 
woman', and the testimony of Dr. Harvey T. Sloane, both before the 
Judiciary Committee of the Senate. I feel that her statement and his 
testimony should be considered carefully by this body on the question 
of busing. These people have gone through this situation probably 
as much as anybody else in the country. Xo cities ever had greater 
problems in busing than Boston, Mass., and Louisville, Ivy. 

I hope the Senate will take into consideration the terrific problems 
thnt are posed by busing for racial balance. 

I have presented this amendment because I feel that it would be a 
great mistake to award an attorney's fee in an action involving the 
transportation of students to carry an order or a plan of racial desegre- 
gation of any public school or local educational agency. 

Mr. President. T ask for the yeas and nays on this amendment. 



107 



The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The clerk will call the roll. 

Mr. Gravel. Mr. President, I move to table the amendment. 

Mr. Helms. I ask for the yeas and nays, Mr. President. 

The Presiding Officer. The yeas and nays have been ordered. 

The question is on agreeing to the motion of the Senator from Alaska 
to table the amendment of the Senator from South Carolina. 

On this question the yeas and nays have been ordered, and the clerk 
will call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce 



that the Senator from Indiana (Mr. Bayh), the Senator from Indiana 
(Mr. Hartke), the Senator from Michigan (Mr. Philip A. Hart), the 
Senator from Wyoming (Mr. McGee), the Senator from Minnesota 
(Mr. Mondale), the Senator from New Mexico (Mr. Montoya), 
the Senator from California (Mr. Tunney). and the Senator from 
Minnesota (Mr. Humphrey) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) , and the 
Senator from Montana (Mr. Mansfield) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Minnesota (Mr. Humphrey) would vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland, Mr. 
Beall). the Senator from New York (Mr. Buckley), the Senator from 
Kansas (Mr. Dole), the Senator from New Mexico (Mr. Domenici), 
the Senator from Arizona (Mr. Goldwater), the Senator from Oregon 
(Mr. Packwood), and the Senator from Connecticut (Mr. Weicker) 
are necessarily absent. 

I also announce that the Senator from Tennessee (Mr. Baker) is 
absent on official business. 

The result was announced — yeas 50, nays 32, as follows : 



[S 16457] 



[Rollcall Vote No. 630 Leg.] 



YEAS — 50 



\bourezk 

P>ellmon 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 
'annon 
~ase 
'1 mrcli 
L'lark 
L'ranston 
Culver 
Durkin 
gagleton 
BVmg 
travel 
[lart. Gary 



Haskell 

Hatfield 

Hathaway 

Huddleston 

Inouye 

Jackson 

Javits 

Kennedy 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntyre 

Morgan 

Moss 

Muskie 

Ni lsoii 



Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schvveiker 

Scott. Hugh 

Stafford 

Stevens 

Stevenson 

Symington 

Taft 

Williams 
Young 



108 



NAYS — 32 



Allen 
Bartlett 
Hen t. sen 
Biden 

Byrd, Harry F., Jr. 

Chiles 

Curtis 

Eastland 

Fannin 

Ford 



Gam 

Griffin 

Hansen 

Helms 

Hollings 

Hruska 

Johnston 

Laxalt 

Long 

McClellan 

McClure 



Metealf 

Nunn 

Roth 

Scott, William L. 

Sparkman 

S tennis 

Stone 

Talmadge 

Thurmond 

Tower 



NOT VOTING— 13 



Baker 

Bayh 

Beall 

Buckley 

Dole 

Domenici 



Glenn 

Goldwater 

Hart, Philip A. 

Hartke 

Humphrey 

Mansfield 



McGee 

Mondale 

Montoya 

Packwood 

Tunney 

Weicker 



So the motion to lay on the table was agreed to. 



[S 16467] 
Order of Business Tomorrow 

Mr. Robert C. Byrd. Mr* President, shortly I will move to adjourn 
the Senate until 9 :30 a.m. tomorrow. If that motion carries, the vote 
on the motion to adopt cloture will occur at about 10 :45 a.m. tomorrow, 
give or take a little bit. But it is possible that rollcall votes could occur 
prior to that cloture vote tomorrow. 

Also tomorrow at 12 :15 p.m. the Senate will recess to go as a body 
to the hall of the House of Representatives to attend a joint meeting 
for the purpose of hearing an address by the Honorable William 
Tolbert, Jr., President of Liberia. 

On the completion of that joint meeting, the Senate will resume its 
work. 

Mr. President, I yield to the Senator from West Virginia (Mr. Ran- 
dolph) for not to exceed 30 seconds with the understanding that I do 
not lose my right to the floor. 

The Presiding Officer. Without objection, it is so ordered. 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights xVttorneys r Fees Awards Act of 1975. 

Mr. Robert C. Byrd. Mr. President, I yield to the distinguished 
Senator from Alabama (Mr. Allen) for the purpose of laying down an 
amendment to the pending bill making it the pending question, with 
the understanding that I yield no longer than 30 seconds and for that 
purpose only and without losing my right to the floor. 



AMENDMENT NO. 23 71 



Mr. Allen. Mr. President, I call up my amendment to the Ken- 
nedy amendment and ask that it be stated. 



109 



The Presiding Officer (Mr. Burdiek). The amendment will be 
stated. 

The legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) for himself and Mr. Helms, proposes 
an amendment No. 2371. 

Strike lines 1 and 2 and substitute the following : 

"That this act may be cited as the Tunney-Kennedy-Abourezk Civil Rights 
Attorneys' Fees Awards Act of 1976." 

Mr. Robert C. Byrd. Mr. President, does any other Senator wish 
me to yield? 



Mr. Robert C. Byrd. Mr. President, I move that the Senate stand 
in adjournment until the hour of 9 :30 tomorrow morning, and ask for 
a vote. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from West Virginia. 

The motion was agreed to; and at 6 :11 p.m., the Senate adjourned 
until tomorrow, Thursday, September 23, 1976, at 9 :30 a.m. 



Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the reading of the Journal of the proceedings of Wednesday, Sep- 
tember 22, 1976, be dispensed with. 

Mr. Allen. Mr. President, I object, and I suggest the absence of a 
quorum. 

The Acting President pro tempore. Objection is heard. The clerk 
will call the roll. 



The second assistant legislative clerk proceeded to call the roll, 
i Mr. Robert C. Byrd. Mr. President. I ask unanimous consent that 
the order for the quorum call be rescinded. 
Mr. Allen. I object. 

The Acting President pro tempore. Objection is heard. 
Mr. Robert C. Byrd. Mr. President, a Senator is supposed to stand 
when he directs a statement to the Chair. 

The Acting President pro tempore. The Senator is correct. 
Mr. Allen. I object. 

The Acting President pro tempore. Objection is heard. The clerk 
n will call the roll. 

The assistant legislative clerk resumed the call of the roll and the 
» following Senators entered the Chamber and answered to their names : 



Adjourned to 9 :30 A.M. Tomorrow 



[122 Con. Rec. S16473 (adily ed. Sept. 23, 1976) ] 



The Journal 



Quoruae Call 



[Quorum No. 50 Leg.] 



Abourezk 
Allen 

Byrd, Robert C. 



Culver 
Griffin 
Huddleston 



McClure 
Pearson 
Stone 



110 



The Acting President pfo tempore. A quorum is not present. The 
cleric will call the names of absent Senators. 

The assistant legislative clerk resumed the call of the roll. 

Mr. Robert C. Byrd. Mr. President, T move that the Sergeant at 
Ai ins be directed to request the attendance of absent Senators, and I 
ask for the yeas and nays. 

The Acting President pro tempore. Ts there a sufficient second? 

There is a sufficient second. 

The yeas and nays were ordered. 

The Acting President pro tempore. The question is ou agreeing to 
the motion of the Senator from West Virginia. The yeas and nays 
have been ordered. The clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

Mr. Alt/fx. Regular order. 

The. call of the roll was concluded. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Air. Bayh), the Senator from Arkansas (Mr. Bumpers), the Sena- 
tor from Virginia (Mr. Harry F. Byrd, Jr.), the Senator from Cal- 
ifornia (Mr. Cranston), the Senator from New Hampshire (Mr. Dur- 
kiri), the Senator from Michigan (Mr. Philip A. Hart), the Senator 
from Indiana (Mr. Hartke). the Senator from Massachusetts (Mr. 
Kennedy) , the Senator from Louisiana (Mr. Long) , the Senator from 
Washington (Mr. Magnuson), the Senator from Wyoming (Mr. 
McGee), the Senator from Nbw Hampshire (Mr. Melntvre), the Sen- 
ator from Montana (Mr. Metcalf), the Senator from Minnesota (Mr. 
Mondale), the Senator from New Mexico (Mr. Montoya), the Sen- 
ator from Rhode Island (Mr. Pas'tore), the Senator from Rhode 
Island (Mr. Pell), the Senator from Missouri (Mr. Symington), the 
Senator from Georgia (Mr. Talmadge), and the Senator from New 
Jersey (Mr. Williams) are necessarily absent. 

I also announce that the Senator from Ohio (Mr. Glenn), and the 
Senator from Montana (Mr. Mansfield) are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Nebraska (Mr. Curtis), the Senator from 
Kansas (Mr. Dole), the Senator from Arizona (Mr. Fannin), the 
Senator from Arizona (Mr. Goldwater), the Senator from Oregon 
(Mr. Hatfield) , the Senator from New York (Mr. Javits) , the Senator 
from Oregon (Mr. Pack wood), the Senator from Virginia (Mr. Wil- 
liam L. Scott), and the Senator from Connecticut (Mr. Weicker) are 
necessarily absent. 

The result was announced — yeas 64, nays 4, as follows: 



[Rollcall Vote No. 631 Leg.] 



YEAS— 64 



Abourezk 
Baker 



Cannon 

Case 

Chiles 

Church 

Clark 

Culver 

Domenici 

Kagleton 

Eastland 

Fong 



Ford 

Gravel 

Griffin 

Hansen 

Hart, Gary 

Haskell 

Hathaway 

Helms 

Hollings 

Hruska 



Bartlett 
Bollmon 
Bontsen 
Brock 



Brooke 

Buckley 

Burdick 



Byrd, Robert C. 



Ill 



YEAS— 64— Continued 



Huddleston 

Humphrey 

Inouye 

Jackson 

Johnston 

Laxalt 

Leahy 

Mathias 

McClellan 

McClure 

McGovern 

Moss 



Muskie 

Nelson 

Nunn 

Pearson 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 
Scott, Hugh 
Sparkman 



Stafford 

Stennis 

Stevens 

Stevenson 

Stone 

Taft 

Thurmond 
Tower 
Tunney 
Young 



Allen 
Biden 



NAYS— 4 



Garn 



Morgan 



Bayh 
Beall 
Bumpers 

Byrd, Harry F., Jr. 

Cranston 

Curtis 

Dole 

Durkin 

Fannin 



NOT VOTING— 32 

Glenn Mansfield 

Goldwater McGee 

Hart, Philip A. Mclntyre 

Hartke Metcalf 

Hatfield Mondale 

Javits Montoya 

Kennedy Packwood 

Long Pastore 
Magnuson 



Pell 

Scott, William L. 



[S 16474] 



Symington 
Talmadge 



Weicker 
Williams 



So the motion was agreed to. 

The Presiding Officer. A quorum is present. 



The Journal 

The Presiding Officer. The clerk will read the Journal. 
The legislative clerk proceeded to read the Journal of Wednesday, 
September 22, 1976. 

During the reading the following occurred : 

The Presiding Officer. The clerk will suspend. The Senate will 
come to order. The clerk will not proceed until we have order. 

Mr. Abourezk. Mr. President, I ask unanimous consent that the 
reading of the Journal be dispensed with. 

The Presiding Officer. Is there objection ? 

Mr. Allen. Objection. 

The Presiding Officer. Objection is heard. 

The clerk will proceed. 

The legislative clerk resumed the reading of the Journal. 
During the reading the following occurred : 

Mr. Robert C. Byrd. Mr. President, I make a point of order that 
under rule XXII, 1 hour after the Senate having met, the Chair shall 
lay the motion for cloture before the Senate and direct that the Sec- 
retary call the roll, and upon the ascertainment that a quorum is pres- 

79-5S6— 77 9 



112 



ent, the Presiding Officer shall, without debate, submit to the Senate by 
a yea-and-nay vote the motion on cloture, that rule having been for- 
malized subsequent to the writing of rule III, and the authors of 
rule XXII, having known of rule III, and having made no exception 
thereto, and it not being a constitutional question as to whether or not 
the reading of the Journal shall be suspended, that the Chair invoke 
rule XXII. 

Mr. Allen. A point of order, Mr. President. The reading of the 
Journal cannot be suspended. 

Mr. Robert C. Byrd. I make a point of order. 
Mr. Allen. A point of order. 

The Presiding Officer (Mr. Ford). The Chair will read rule III. 

The Presiding Officer having taken the Chair, and a quorum being present, the 
Journal of the preceding day shall be read, and any mistake made in the entries 
corrected. The reading of the Journal shall not be suspended unless by unan- 
imous consent ; 

The point of order of the Senator from West Virginia is not well 
taken. 

Mr. Robert C. Byrd. Mr. President, we have two rules in conflict 
here. Rule XXII was written subsequent to rule III with foreknowl- 
edge of the authors thereof. The nonsuspension of the reading of the 
Journal is not a constitutional question, and I appeal the ruling of 
the Chair, and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

Mr. Allen addressed the Chair. 

The Presiding Officer. The Senator from Alabama. 
Mr. Allen. I appeal from the ruling of the Chair, and that is 
debatable. 

Mr. Robert C. Byrd. It is not. 

The Presiding Officer. Not in this context. 

Mr. Allen. Cloture has not been voted. 

The Presiding Officer. But the Journal is being read, and I am 
now going to submit it to the Senate, and the appeal from the ruling 
of the Chair is not debatable in this context. 

Mr. Abotjrezk. Regular order. 

Mr. Allen. I appeal from that ruling as well. I appeal from two 
rulings, Mr. President. 

Mr. Abourezk. Regular order. 

The Presiding Officer. There is a request for the regular order. 
Mr. Allen. I appeal from that ruling right now that this is not 
debatable. 

The Presiding Officer. If the two Senators will wait, I will do my 
best to try to let you have another vote. 

Mr. Allen. I appeal from the Chairs last ruling that this is not 
debatable. 

The Presiding Officer. There is an appeal pending. The question is, 
Shall the decision of the Chair stand as the judgment of the Senate ? 
The yeas and nays have been ordered. 

Mr. Robert C. Byrd. What is the question ? 

The Presiding Officer. It is on the appeal of the Senator from 
West Virginia from the ruling of the Chair. The question now 



113 



Mr. Allen. Mr. President, I make a point of order. This is debatable. 
Mr. Cranston. Regular order. 

Mr. Allen. I appeal from any ruling to the contrary. 

The Presiding Officer. The Chair holds it is not debatable, and the 
question is on the appeal of the Senator from Alabama. The question 
now is on the point of order made by the Senator from Alabama that 
the question is not debatable. 

Mr. Allen. Mr. President, I call for the yeas and nays on the point 
of order, on my point of order. 

The Presiding Officer. Is there a sufficient second on the appeal ? 

Mr. Eobert C. Byrd. Mr. President, I move to table the appeal of 
the Senator from Alabama. 

Mr. Abourezk. I ask for the yeas and nays. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from West Virginia to table the appeal by the Senator 
from Alabama. The yeas and nays have been requested. 

Mr. Allen. Mr. President, I suggest the absence of a quorum. 

The Presiding Officer. The rollcall has been ordered. 

Mr. Allen. Mr. President, not before I made that request. 

Mr. Helms. There was no response. 

Mr. Allen. I suggest the absence of a quorum. 

The Presiding Officer. The quorum call is not in order during the 
reading of the Journal, and the clerk will call the roll on the tabling 
motion of the Senator from West Virginia. 

The legislative clerk proceeded to call the roll. 

The Presiding Officer. The clerk will suspend. Will the Senate 
come to order ? 

The clerk will suspend until the Senate comes to order. Clear the 
well. Senators will clear the well. 
The clerk will suspend until the Senate comes to order. 
The clerk may proceed. 

The legislative clerk resumed calling the role. 

The Presiding Officer. The Senate will please come to order. Sen- 
ators take their seats. 
The legislative clerk resumed calling the roll. 

The Presiding Officer. The Senate will please come to order. 
Senators please take their seats. Senators clear the aisles. Senators 
please take their seats. 

The legislative clerk resumed and concluded calling the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from New Hampshire (Mr. Durkin), the 
Senator from Wyoming (Mr. McGee), the Senator from [Minnesota 
(Mr. Mondale), and and Senator from New Mexico (Mr. Montoya) 
are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and 
the Senator from [Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Kansas (Mr. Dole), the Senator from Ore- 
gon (Mr. Packwood), and the Senator from Connecticut (Mr. 
Weicker) are necessarily absent. 

The result was announced — yeas 69, nays 20, as follows : 



[Bollcall Vote No. (J32 Leg.] 



YEAS — 69 



Abourezk 


Gravel 


Morgan 


Allen 


(iriffin 


Moss 


Baker 


Mart, Gary 


Muskie 


Bellmon 


tt . i_ -r% 1* 1 • „ A 

Haft, Philip A. 


Nelson 


Bentseh 


Hartke 


Pastore 


Biden 


I [askejl 


Pearson 


Brock 


Ha1 held 


Pell 


Brooke 


Hathaway 


Percy 


Bumpers 


HolLings 


Proxmire 


Burdick 


I Iuddleston 


Randolph 


Byrd, Harry F., Jr. 


Humphrey 


Rihicoff 


By rd. Robert C. 


Inouye 


Roth 


( Jannon 


Jackson 


Schweiker 


Case 


Javits 


Scolt, Hugh 


Chiles 


Johnston 


Stafford 


CI lurch 


Kennedy 


Stevens 


Clark 


Tjeah v 


SteVCnSOn 


Cranston 


Magnuson 


Stone 


Culver 


Mathias 


Symington 


Domenici 


McClure 


Taflt 


Eagleton 


McGovern 


Tunney 


Fong 


McTntvre 


Williams 


Ford 


Metcalf 


Young 




NT \ Y^ ^rt 




B-i rtlfttt" 

1 ><l 1 i 1 t7l L 


Hansen 


Scott Will in 


Buckley 


Helms 


Sparkman 


Curtis 


Hruska 


Stennis 


Eastland 


Laxalt 


Talmadge 


Fannin 


Long 


Thurmond 


Garn 


MeClellan 


Tower 


Goldwater 


Nunn 






XOT VOTING— 11 




Bavh 


Glenn 


Montoya 


Beall 


Mansfield 


Packwood 


Dole 


McGee 


Weicker 


Durkin 


Mondale 





[S 16475] 

So the motion to lay on the table the appeal from the ruling of the 
Chair was agreed to. 

Mr. Allen. Mr. President, having noted on the prevailing side, I 
move to reconsider the vote by which the motion was agreed to. 

Mr. Robert C. Byrd. Mr. President, I move to lay that motion on the 
table, and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to lay on the table the motion to reconsider the vote by which the rul- 
ing of the Chair w r as sustained. The yeas and nays have been ordered, 
and the clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert 0. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from Wyoming (Mr. McGee), the Senator 



115 



from Minnesota (Mr. Mondale), and the Senator from New Mexico 
(Mr. Montoya) are necessarily absent. 

I further anounce that the Senator from Ohio (Mr. Glenn) , and the 
Senator from Montana (Mr. Mansfield) , are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall) , the Senator from Kansas (Mr. Dole) , the Senator from Oregon 
(Mr. Packwood), and the Senator from Connecticut (Mr. Weicker), 
are necessarily absent. 

The result was announced — yeas 76, nays 14, as follows : 

[Rollcall Vote No. 633 Leg.] 



YEAS — 76 



Abourezk 


Mart, Gary 


Nelson 


Baker 


nai t, i iimp A. 


Nunn 


Bellmon 


nai tKe 


Pastore 


Bentsen 


XT it nl-»y\H 

xiaskeu 


Pearson 


Biclen 


iiatneici 


Pell 


Brock 


Hathaway 


Percy 


Brooke 


Hollings 


Proxmire 


Bumpers 


Hruska 


Randolph 


Burdick 


Huddleston 


Ribicoff 


Byrd, Harry F., Jr. 


Humphrey 


Roth 


gyrd, Robert C. 


Inouye 


Schweiker 


Cannon 


Jackson 


Scott, Hugh 


Case 


Javits 


Stafford 




Tnlinc; tnn 

*} UIlIIo tUIl 




Church 


Kennedy 


Stevens 


Clark 


Leahy 


Stevenson 


Cranston 


Magnuson 


Stone 


Culver 


Mathias 


Symington 


Domenici 


McClellan 


Taft 


Bur kin 


McClure 


Talmadge 


Eagleton 


McGovern 


Tower 


■ Eastland 


Mclntyre 


Tunney 


Fong 


Metcalf 


Williams 


; Ford 


Morgan 


Young 


Gravel 


Moss 




Griffin 


Muskie 






NAYS— 14 




Allen 


Garn 


Long 


Bartlett 


Goldwater 


Scott, Willia 


Buckley 


Hansen 


Sparkman 


Curtis 


Helms 


Thurmond 


Fannin 


Laxalt 






NOT VOTING— 10 




Bayh 


Mansfield 


Packwood 


Beall 


McGee 


Weicker 


Dole 


Mondale 




Glenn 


Montoya 





So the motion to lay on the table was agreed to. 



TIME-LIMITATION AGREEMENT 

Mr. Robert C. Byrd. Mr. President, I ask unanimous consent that 
the distinguished Senator from Alabama and I may each have 5 min- 
utes to debate this question before he moves to table my appeal. 

The Acting President pro tempore. Is there objection ? 



116 



Mr. Ali.kx. Mr. President, reserving the right to object, I do wish to 
be recognized. I ask unanimous consent to have this as part of the 
unanimous-consent agreement, following the expiration of the 10 
minutes that I be recognized to make a motion to lay on the table. 

The Actixg President pro tempore. Is there objection ? 

Mr. Allex. Mr. President, I ask unanimous consent that I might 
at this time call for the yeas and nays on my prospective motion. 

The Acting President pro tempore. Without objection, it is so 
ordered. 

Is there a sufficient second ? There is a sufficient second. 
The yeas and nays were ordered. 

The Acting Presidext pro tempore. The Senator from West Vir- 
ginia is recognized for 5 minutes. 

Mr. Robert C. B yrd. Mr. President, may we have order ? 

The Actixg Presidext pro tempore. Will Senators kindly take 
their seats? Senators will cease their conversations, so that the Senate 
may be in order. The Senate staff members will take their seats. 

Mr. Robert C. Byrd. Mr. President, one of the objectives here is to 
run the clock to 12:15, at which time, under the order previously 
entered, the Senate is supposed to go to the Hall of the House of Rep- 
resentatives in a body, thus delaying the vote on cloture until the Sen- 
ate returns. That is one of the objectives. Therefore, I would be con- 
strained to object to any further debate after this 10 minutes has been 
consumed. 

The Constitution makes this reference to the reading of the 
Journal : 

Each House shall keep a Journal of its Proceedings, and from time to time 
publish the same, excepting such Parts as may in their Judgment require Se- 
crecy ; and the Yeas and Nays of the Members of either House on any question 
shall, at the Desire of one fifth of those Present be entered on the Journal. 

That is all the Constitution says about the Journal. The Constitu- 
tion does not require the reading of the Journal at the beginning of 
each day's session. The Constitution says nothing about suspending 
the reading of the Journal. 

Rule III of the Standing Rules of the Senate, in paragraph 1, says 
this, in part : 

The Presiding Officer having taken the chair, and a quorum being present, the 
Journal of the preceding day shall be read, and any mistake made in the entries 
corrected. The reading of the Journal shall not be suspended unless by unanimous 
consent . . . 

That is what rule III says, not the Constitution. 
Rule XXTI roads as follows on this point : 

Notwithstanding the provisions of rule III 

Which I have just read 

or rule VI or any other rule of the Senate at any time a motion signed by sixteen 
Senators, to bring to a close the debate upon any measure, motion, other matter 
pending before the Senate, or the unfinished business, is presented to the Senate, 
tbe Presiding Officer shall at once state the motion to the Senate, and one hour 
alter the Senate meets on the following calendar day but one, he shall lay tbe 
motion before the Senate and direct that the Secretary call the roll, and upon 
the ascertainment that a quorum is present, the Presiding Officer shall, without 
debate, submit to the Senate by a yea-and-nay vote the question : 

"Is it the sense of the Senate that the debate shall be brought to a close?" 



117 



Rule XXII was written subsequent to the creation of rule III. 

I suppose — and I think I am correct in this — that rule III was writ- 
ten in 1789 or at such time as the Senate originally adopted its 18 or 19 
rules at that time. Rule XXII was written in 1917. The authors of 
rule XXII knew of the existence of rule III at the time they wrote 
rule XXII. I maintain that they wrote rule XXII with that knowledge 
and that rule XXII prevails over rule III when a point of order is 
raised. 

This precise point of order never has been made in the Senate in all 
the years of its existence. So that the Senate today ultimately will have 
an opportunity to decide this question : as to which of these rules in 
these precise circumstances, rule XXII or rule III, will prevail. 

Let us read again the first sentence of paragraph 2 of rule XXII : 

Notwithstanding the provisions of rule III or rule VI or any other rule of the 
Senate, at any time a motion signed by sixteen Senators, to bring to a close the 
debate upon any measure, motion, other matter pending before the Senate or the 
unfinished business, is presented to the Senate, the Presiding Officer shall at once 
state the motion to the Senate. . . . 

The argument may be made by my friend, Mr. Allen — and he is a 
very astute, knowledgeable, capable man and knows the rules exceed- 
ingly well — that notwithstanding the provisions of rule III, that 
phrase goes 07ily to the first clause : 

The Presiding Officer shall at once state the motion to the Senate. 

But if the presenting of a motion to the Senate is so weighty and 
vital that the provisions of rule III are to be accepted as they are, then 
the follow-on — the vote on that cloture motion — must have had equal 
weight and equal vitality in the minds of the authors of ride XXII, 
paragraph 2. 

I maintain that, had the authors of that rule meant to except the 
automatic call of the quorum and the automatic vote on cloture from 
rule III, they would have so stated. 

The Chair has ruled against me in this. I have appealed the ruling 
of the Chair. The Senate is going to make a decision as 



between the two rules, which should prevail in this set of circumstances. 
Mr. Allen will move to table my motion, but the Senate is going to 
decide today which of the rules it wants to follow in this precise set 
of circumstances. I hope the Senate will sustain my motions in this 
instance and not the Chair's ruling, for which I do not ordinarily hope. 

The Presiding Officer. The Senator's time has expired. 

Mr. Allen. Mr. President, I appreciate the supreme courtesy of 
the distinguished Senator from West Virginia in allowing some little 
discussion on this matter. 

I had thought that an appeal from the ruling of the Chair was 
debatable, but the Chair held otherwise and the Senate sustained him. 
This is a highly technical contention that the distinguished Senator 
from West Virginia has made — that the Journal, in the process of 
being read, can be suspended to take up the cloture proceedings, to 
have the quorum call, and then the cloture vote. 

We all know, Mr. President, that in parliamentary bodies, the read- 
ing of the journal, the complete reading of the journal — and if any 



118 



Senator Wishes to offer a correction of that journal, he is permitted to , 
do so — is basic in any parliamentary order. The reading- of minutes 
in clubs is always the first order of business. 

I do not see that a great deal lias been gained by these parliamentary 
maneuvers of the distinguished Senator from West Virginia, who is 
highly knowledgeable in the rules. If Ave just had allowed the Journal 
to have been read, we would already be in the cloture process. So we 
are not really saving any time here. But now that the point has come 
up. it should be discussed. 

I call attention to the Senate Procedure on page 217, under "Journal, 
Beading of," 

The reading of the Journal, as decided by the Senate on one 
occasion, is not suspended or dispensed with — not suspended or dis- 
pensed with — according to this paragraph — by even the adoption of 
a cloture motion on a bill ; a motion to suspend the reading of the Jour- 
nal is not in order, but requires unanimous consent. 

Now, the distinguished Senator from West Virginia said that I 
would make the contention, and apparently, he felt that this conten- 
tion had to be answered in advance, because he knew of the debate. 
He says that, notwithstanding provisions of rule III, rule VI, or any 
other rule of the Senate, any time a motion signed by 16 Senators to 
bring debate to a close upon any measure, motion, or any other matter 
pending before the Senate or the unfinished business, is presented to 
the Senate, the Presiding Officer shall at once state the motion. 

That is all that is being protected. We all know that the filing of 
cloture is also very important here, and a Senator can be taken off his 
feet — he does not even have to yield the floor. He can be taken off his 
feet to have a cloture motion presented. That is what this is trying 
to protect here, the right of any 16 Senators to file a cloture motion. 
The cloture motion can be filed, even though the Journal is 'being read. 
But it cannot be suspended merely for going forward with the rest 
of rule XXII. 

So it is basic in any parliamentary body that the Journal be read 
or that unanimous consent be given that it be dispensed with, and not 
the rule, but the ruling in the past, that a motion to suspend the reading 
of the Journal is not in order, but requires unaninipus consent. 

Xow, on these matters where we have decisions by the Chair, the 
leadership has it both ways here. As long as the Chair rules with the 
leadership, then that is the end of it. Who can appeal from a ruling 
of the Chair decided with the leadership ? But they are not willing 
for the Chair to ever make a ruling that is contrary to their contention. 
And who is deciding who is making the rulings here? Is it the Parlia- 
mentarian or is it the person who is managing the bill ? 

I feel that we need to support the Parliamentarian. I have sided 
with the Parliamentarian on many occasions when I thought that he 
was wrong, because I think it is best for orderly procedure that we 
know what to expect. If the Parliamentarian says one thing, he is a 
disinterested person 

The Presiding Officer. The Senator's time has expired. 

Mr. Allen. I think we ought to stand by the ruling of the Parlia- 
mentarian in this matter. He has read both rules, as the Senator from 



119 



West Virginia has. He rules that the Senator is out of order. I hope 
the Senate will sustain the decision. 

Mr. Robert C. Byrd. Mr. President, a parliamentary inquiry. 

The Presiding Officer. The Senator will state the inquiry. 

Mr. Robert C. Byrd. Has there ever been a decision on this point of 
order under these precise circumstances % 

The Presiding Officer. This will be a case of first impression. 

Mr. Allen. There has been a ruling now, has there not, that the 
Senator was out of order when he made his request ? 

The Presiding Officer. That is correct. 

The time has expired. 

Mr. Allen. Mr. President 

The Presiding Officer. The Senator from Alabama is recognized. 
Mr. Allen. Would a motion that the Senate adjourn until 12 :15 
be in order? 

Mr. Robert C. Byrd. Mr. President, the Senator was recognized for 
a motion to table. 

Mr. Allen. I did not make the motion. I merely made an inquiry. 
Would a motion be in order ? 

The Presiding Officer. Such a motion would not be in order dur- 
ing the reading of the Journal. Does the Senator 

Mr. Allen. I thank the Chair for his consistency. 

I move to table the appeal from the ruling of the Chair. 

Mr. Gary Hart. Mr. President, a parliamentary inquiry. 

The Presiding Officer. The Senator will state it. 

Mr. Gary Hart. Will the Chair restate the ruling upon which his 
decision was made ? 

The Presiding Officer. The Chair ruled that rule III, which re- 
quires the reading of the Journal, and which requires unanimous con- 
sent in order to dispense with further reading or suspend the read- 
ing of the Journal, takes precedence over rule XXII as to the vote 
on cloture. That ruling was appealed by the Senator from West Vir- 
ginia. Now, the Senator from Alabama has moved to table that 
appeal. 

The question is on the motion to table the appeal from the ruling of 
the Chair. The yeas and nays have been ordered. The clerk will call 
the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from Wyoming (Mr. McGee), the Senator 
from Minnesota (Mr. Mondale), the Senator from New Mexico (Mr. 
Montoya), the Senator from Arkansas (Mr. Bumpers), and the Sen- 
ator from Massachusetts (Mr. Kennedy) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Kansas (Mr. Dole), the Senator from Ore- 
gon (Mr. Packwood), and the Senator from Connecticut (Mr. 
Weicker) are necessarily absent. 



120 



The result was announced — yeas 34, nays 54, as follows : 



Baker 

Bartletl 

P. rock 

Kuckley 

Byrd, Harry F, 

Church 

Curtis 

] >omenici 

Durkin 

Eastland 

Fannin 

Ford 



Abourezk 

Allen 

Bellmon 

Bentsen 

Biden 

Brooke 

Burdick 

Byrd, Robert C. 

Cannon 

Case 

Chiles 

Clark 

Cranston 

Culver 

Eagleton 

Fong 

Gravel 

Griffin 



Jr. 



Bavh 
Beall 
Bumpers 
Dole 



[Rollcall Vote No. 634 Leg.] 
YEAS— 34 

Garri 

Goldws&ter 
I lansen 
Haskell 
Hatfield 
Helms 
Hruska 
Laxalt 
Long 

McCleUan 
McClure 
Morgan 



Xunn 
Roth 

Scott, William L 

Sparkman 

Stennis 

Stevens 

Talmadge 

Thurmond 

Tower 

Young 



NAYS — 54 

Hart, Gary 

Hart, Philip A. 

Hartke 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntrye 

Metcalf 

Moss 

NOT VOTING— 12 

Glenn 
Kennedy 
Mansfield 
McGee 



Muskie 

Nelson 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schwieker 

Scott, Hugh 

Stafford 

Stevenson 

Stone 

Symington 

Taft 

Tunney 

Williams 



Mondale 
Montoya 
Packwood 
Weicker 



So the motion to lay on the table was rejected. 
Mr. Allen and Mr. Abourezk addressed the Chair. 
The Presiding Officer (Mr. Johnston) . The Senator from Alabama. 
Mr. Allen. Mr. President, having voted to lay it aside, I move to 
reconsider the vote on the motion to table. 

[S 16477] 

Mr. Robert C. Byrd. Mr. President, I move to lay the motion on the 
table, and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to table the motion to reconsider. The yeas and nays have been ordered, 
and the clerk will call the roll. 

The second assistant legislative clerk called the roll. 



121 



Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh), the Senator from Arkansas (Mr. Bumpers), the Senator from 
Massachusetts (Mr. Kennedy), the Senator from Wyoming (Mr. Mc- 
Gee), the Senator from Minnesota (Mr. Mondale), the Senator from 
New Mexico (Mr. Montoya) , are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and the 
Senator from Montana (Mr. Mansfield) are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall) , the Senator from Kansas (Mr. Dole) , the Senator from Oregon 
(Mr. Packwood), the Senator from Vermont (Mr. Staiford), and the 
Senator from Connecticut (Mr. Weicker) are necessarily absent. 

The result was announced — yeas 72, nays 15, as follows : 

[Rollcall Vote No. 635 Leg.] 
YEAS— 72 



Abourezk 

Bellmon 

Bentsen 

Biden 

Brock 

Brooke 

Buckley 

Bui-dick 

Byrd, Robert C. 

Cannon 

Case 

Chiles 

Church 

Clark 

Cranston 

Culver 

Curtis 

Domenici 

Eagleton 

Eastland 

Fong 

Ford 

Garn 

Gravel 



Griffin 

Hart, Gary 

Hart, Philip A. 

Hartke 

Haskell 

Hatfield 

Hathaway 

Hollings 

Hruska 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Leahy 

Magnuson 

Mathias 

McClellan 

McGovern 

Mclntyre 

Metcalf 

Morgan 

Moss 

Muskie 



Nelson 

Nunn 

Pastore 

Pearson 

Pell 

Percy 

Proxinire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Scott, William L. 

Stennis 

Stevens 

Stevenson 

Stone 

Symington 

Taft 

Talmadge 

Tower 

Tunney 

Williams 

Young 



Allen 
Baker 
Bartlett 
Byrd, Harry F. 
Durkin 



Jr. 



NAYS— 15 



Fannin 

Goldwater 

Hansen 

Helms 

Johnston 



Laxalt 

Long 

McClure 

Sparkman 

Thurmond 



NOT VOTING— 13 



Bayh Kennedy Packwood 

Beall Mansfield Stafford 

Bumpers McGee Weicker 

Dole Mondale 

Glenn Montoya 



So the motion to lay on the table was agreed to. 

The Presiding Officer. The question now recurs on the appeal from 
the ruling of the Chair. The question is, shall the decision of the 
Chair stand as the judgment of the Senate? The yeas and nays have 
been ordered, and the clerk will call the roll. 

Mr. Aixen. Mr. President, a parliamentary inquiry. 



122 



The Presiding Officer. The Senator will state it. 

Mr. Allen. Is there an order entered by unanimous consent that at 
12 :15 the Senate shall proceed in a body to the Hall of the House of 
Representatives ? 

Mr. Robert C. Byrd. I ask for the regular order. 

The Presiding Officer. There is such an order. 

Mr. Allen. I thank the Chair. 

The Presiding Officer. The yeas and nays have been ordered, and 
the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh) , the Senator from Arkansas (Mr. Bumpers) , the Senator from 
Michigan (Mr. Philip A. Hart) , the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Wyoming (Mr. McGee), the Senator 
from Minnesota (Mr. Mondale), the Senator from New Mexico (Mr. 
Montoya), and the Senator from New Jersey (Mr. Williams) are 
necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall) , the Senator from Kansas (Mr. Dole) , the Senator from Oregon 
(Mr. Packwood), and the Senator from Connecticut (Mr. Weicker) 
are necessarily absent. 

The result was announced — yeas 36, nays 50, as follows : 



[Rollcall Vote No. 636 Leg.] 



YEAS^36 



Bartlett 
Brock 



Baker 



Buckley 

Byrd, Harry F., Jr. 



Church 
Curtis 



Domenici 

Durkin 

Eastland 

Fannin 

Ford 



Garn 

Goldwater 

Griffin 

Hansen 

Haskell 

Hatfield 

Helms 

Hruska 

Laxalt 

Long 

McClellan 

McClure 



Morgan 
Nunn 
Pearson 
Both 

Scott, William L. 

Sparkman 

Stennis 

Stevens 

Talmadge 

Thurmond 

Tower 

Young 



NAYS— 50 



Abourezk 

Allen 

Bellmon 

Bentsen 

Biden 

Brooke 

Burdick 

Byrd, Robert C. 

Cannon 

Case 

Chiles 

Clark 

Cranston 

Culver 

Eagleton 

Fong 

Gravel 



Hart, Gary 

Hartke 

Hathaway 

Rollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntyre 

Metcalf 

Moss 



Muskie 

Nelson 

Pa s tore 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stafford 

Stevenson 

Stone 

Symington 

Taft 

Tunney 



123 



NOT VOTING— 14 



t Bayh 
i Beall 



Kennedy 
Mansfield 
McGee 



Hart, Philip A. 



Montoya 
Packwood 
Weicker 
Williams 



Bumpers 



Dole 
Glenn 



Mondale 



So the ruling of the Chair was not sustained. 
Mr. Allen addressed the Chair. 

The Presiding Officer (Mr. Leahy). The Senator from Alabama. 

Mr. Allen. Mr. President, I move the Senate do now adjourn until 
2 o'clock this afternoon. 

Mr. Robert C. Byrd. Mr. President, that motion is not in order, and 
I ask for the regular order. 

Mr. Allen. Has the Chair ruled? I move we adjourn until 2 o'clock. 

The Presiding Officer. The motion is in order now, the Journal is 
mot being read. 

Mr. Allen. I ask the yeas and nays. 

The Presiding Officer. The motion is in order because the reading 
of the Journal has been suspended by the vote of the Senate not to 
sustain the Chair. 

Mr. Allen. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion of 
the Senator from Alabama. The yeas and nays have been ordered. The 
clerk will call the roll. 

The legislative clerk proceeded to call the roll. 

Several Senators. May we have order, Mr. President ? 

The Presiding Officer. May we have order in the Chamber ? The 
clerk will suspend until the well is cleared and the aisles are cleared. 
Those Senators and Senate officials having conversations will please 
retire to the cloakroom. 

Senators have requested order, and the clerk will suspend until we 
have order. 

The clerk will proceed. 

The second assistant legislative clerk resumed the call of the roll. 

The Presiding Officer. The Chair will appreciate order in the 
I Chamber. The clerk is having difficulty hearing the votes of Senators. 
Senators are having difficulty hearing their names. 

To the extent convenient and in consideration of the problems of the 
Chair, the Chair appreciates Senators carrying out their conversations 
alsewhere. 

The clerk may continue. 

The second assistant legislative clerk resumed and concluded the call 
?f the roll. 

Mr. Gold water. Regular order, Mr. President. Regular order, Mr. 
President. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh), the Senator from Arkansas (Mr. Bumpers), the Senator from 
Michigan (Mr. Philip A. Hart) , the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Wyoming (Mr. McGee), the Senator 



124 



from Minnesota (Mr. Mondale), the Senator from New Mexico (Mr. 
Montoya), and the Senator from Mississippi (Mr. Stennis) are neces* 
sarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn), and 
the Senator from Montana (Mr. Mansfield) are absent on official 
business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Kansas (Mr. Dole), the Senator from Ore- 
gon (Mr. Packwood) 

[S 16478] 

and the Senator from Connecticut (Mr. Weicker) are necessarily 
absent. 

The result was announced — yeas 19, nays 67, as follows: 

[Rollcall Vote No. 637 Leg.] 
YEAS— 10 



Allen 

Baker 

Bellmon 

('art is 

Fannin 

Gam 

Goldwater 



Griffin 

Hansen 

Helms 

Hruska 

Laxalt 

McClure 

Morgan 



Percy 
Scott, 

William L. 
Sparkman 
Stafford 
Thurmond 



NAYS— 67 



Abourezk 

Bartlett 

Bentsen 

Biden 

Brock 

Brooke 

Buckley 

Burdick 

Byrd, 

Harry F.. Jr. 
Byrd, Robert C. 
Cannon 
Case 
Chiles 
Church 
Clark 
Cranston 
Culver 
Domenici 
Durkin 
Eagleton 
Eastland 
Fong 



Ford 

Gravel 

Hart, Gary 

Hartke 

Haskell 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Leahy 

Long 

Magnuson 

Mat hi as 

McClellan 

McGovern 

Mclntyre 

Metcalf 

Moss 



Muskie 

Nelson 

Nunn 

Pastore 

Pearson 

Pell 

Proxmire 
Randolph 
Ribicoff 
Roth 

Schweiker 

Scott, Hugh 

Stevens 

Stevenson 

Stone 

Symington 

Taft 

Talmadge 

Tower 

Tunney 

Williams 

Young 



Bayh 

Beall 

Bumpers 

Dole 

Glenn 



NOT VOTING— 14 

Hart, Philip A. 

Kennedy 

Mansfield 

McGee 

Mondale 



So the motion to adjourn was rejected. 
Mr. Robert C. Byrd. Mr. President- 



Montoya 
Packwood 
Stennis 
Weicker 



Mr. Griffin. Mr. President, a parliamentary inquiry. 



125 



Mr. Allen. A point of order, Mr. President. 

The Presiding Officer. The Senator from West Virginia. 

Mr. Robert C. Byrd. Mr. President, the leadership in the House 
has been notified of the delay. We have asked that the proceedings 
there be held up. The Vice President is over there, talking with the 
President of Liberia, and the proceedings will be held up until we 
can finish our cloture vote, and I ask that the Chair proceed. 

Mr. Allen. A point of order. 



Cloture Motion 

The Presiding Officer. One hour having passed 

Mr. Allen. A point of order, Mr. President. 

The Presiding Officer. The clerk will report the motion. 

(The legislative clerk proceeded to read the motion.) 

Mr. Allen. A point of order, Mr. President. 

Mr. Goldvv ater. A parliamentary inquiry. 

Mr. Allen. A point of order. 

Mr. Hansen. A point of order. 

The legislative clerk read as follows : 

Cloture Motion 

We, the undersigned Senators, in accordance with the provisions of Rule 
XXII of the Standing Rules of the Senate, hereby move to bring to a close the 
debate upon S. 2278, the Civil Rights Attorney's Fees Award Act of 1975. 

Hubert H. Humphrey, Birch Bayh, Quentin N. Burdick, Alan Cran- 
ston, Robert C. Byrd, Patrick J. Leahy, William D. Hathaway, 
Dick Clark, Edward M. Kennedy, James Abourezk, Hugh Scott, 
Harrison A. Williams, John A. Durkin, James B. Pearson, Bob 
Packwood, Frank E. Moss, Jacob K. Javits, William Proxmire, 
Henry M. Jackson, Lowell P. Weicker, Mark O. Hatfield. 

Mr. Allen. A point of order, Mr. President. A point of order. 

The Presiding Officer. The Senator from Alabama will state his 
point of order. 

Mr. Allen. Mr. President, I make the point of order 

Mr. Robert C. Byrd. Mr. President 

Mr. Allen. Will the Senator not interrupt me? 

Mr. Robert C. Byrd. The clerk has read the motion. 

Mr. Allen. Mr. President, I make the point of order — I have been 
recognized — I make the point of order that at this time, in accordance 
with the previous order, the Chair must adjourn the Senate in order 
that it may go to the House Chamber; and I would appeal from any 
contrary ruling by the Chair. 



Call of the Roll 

The Presiding Officer. The Chair rules that the cloture rule is 
operative, and pursuant to rule XXII, the Chair now directs the clerk 
to call the roll. 

Mr. Allen. I appeal the ruling of the Chair. 

The second assistant legislative clerk proceeded to call the roll, and 
Mr. Abourezk answered to his name. 



126 



Mr. Allen. I appeal the ruling of the Chair. I appeal the ruling , 
of the Chair. 

The second assistant legislative clerk continued to call the roll. 

Mr. Gary Hart. Mr. President, may we have order in the Senate £ 

The Presiding Officer. The point is well taken, May we have 
order? The Chair asks Senators to answer to their names when they 
are called, so that we can determine the presence of a quorum. 

The second assistant legislative clerk continued and concluded the 
call of the roll, and the following Senators answered to their names: 



[Quorum No. 51 Leg.] 



Abourezk 


Gold water 


Morgan 


Allen 


Gravel 


Moss 


Baker 


Griffin 


Muskie 


Bartlett 


Hansen 


Nelson 


Bellnion 


Hart, Gary 


Nunn 


Bentsen 


xiai T. r^lllllp A. 


Pastore 


Biden 


HartKe 


Pearson 


Brock 


Jdaskell 


Pell 


Brooke 


liatnem 


Percy 


Buckley 


Hathaway 


Pr ox mi re 


Bumpers 


Xx t; 1.1 life 


T? o n rl f\ \ y\\~\ 
XVdllUOipil 


Burdick 


Hollings 


Ribicoff 


Byrd, Harry F., Jr. 


Hruska 


Roth 


Byrd, Robert C. 


Huddleston 


Schweiker 


Cannon 


Humphrey 


Scott, Hugh 


Case 


Inouye 


Scott, William L. 


Chiles 


Jackson 


Sparkman 


Church 


Javits 


Stafford 


Clark 


Johnston 


Stennis 


Cranston 


Kennedy 


Stevens 


Culver 


Laxalt 


Stevenson 


Curtis 


Leahy 


Stone 


Domenici 


Long 


Symington 


Durkin 


Magnuson 


Taft 


Eagleton 


Mathias 


Talmadge 


Eastland 


McClellan 


Thurmond 


Fannin 


McClure 


Tower 


Fong 


McGovern 


Tunney 


Ford 


Mclntyre 


Williams 


Garn 


Metcalf 


Young 



The Presiding Officer. A quorum is present. 



Vote 

The Presiding Officer. The question is: Is it the sense of the Sen- 
ate that debate on the bill, S. 2278, the Civil Eights Attorneys' Fees 
Awards Act of 1976, shall be brought to a close ? 

The yeas and nays are mandatory under the rule. 

The clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from Wyoming (Mr. McGee), the Senator 
from Minnesota (Mr. Mondale), and the Senator from New Mexico 
(Mr. Montoya) are necessarily absent. 

I further announce that the Senator from Ohio (Mr. Glenn) and the 
Senator from Montana (Mr. Mansfield) are absent on official business. 



127 



Mr. Griffin. I announce that the Senator from Tennessee (Mr. 
Baker), the Senator from Maryland (Mr. Beall), the Senator from 
Kansas (Mr. Dole), the Senator from Oregon (Mr. Packwood), and 
the Senator from Connecticut (Mr. Weicker) are necessarily absent. 

I further announce that, if present and voting, the Senator from 
Connecticut (Mr. Weicker) would vote "yea." 

The yeas and nays resulted — yeas 63, nays 26, as follows : 



Abourezk 

Bellmon 

Bentsen 

Biden 

Brock 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Chiles 

Church 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 

Fong 

Ford 

Gravel 



[Rollcall Vote No. 638 Leg.] 
YEAS — 63 

Griffin Moss 

Hart, Gary Muskie 

Hart, Philip A. Nelson 

Hartke Pastore 

Haskell Pearson 

Hatfield Pell 

Hathaway Percy 

Hollings Proxmire 

Huddleston Randolph 

Humphrey Ribicoff 

Inouye Roth 

Jackson Schweiker 

Javits Scott, Hugh 

Johnston Stafford 

Kennedy Stevens 

Leahy Stevenson 

Magnuson Stone 

Mathias Symington 

McGovern Taft 

Mclntyre Tunney 

Metcalf Williams 



NAYS— 26 



Allen 

Bartlett 

Buckley 

Byrd, Harry F., Jr. 

Cannon 

Curtis 

Eastland 

Fannin 

Garn 



Goldwater 

Hansen 

Helms 

Hruska 

Laxalt 

Long 

McClellan 

McClure 

Morgan 



Nunn 

Scott, William L 

Sparkman 

Stennis 

Talmadge 

Thurmond 

Tower 

Young 



NOT VOTING— 11 

Baker Glenn Montoya 

Bayh Mansfield Packwood 

Beall McGee Weicker 

Dole Mondale 

The Presiding Officer. On this vote the yeas are 63, the nays are 
26. Two-thirds of the Senators duly chosen and sworn having voted in 
the affirmative, the cloture motion is agreed to. 



[S 16481] 

President, I am ready to vote, I will support the amendment. 
Mr. Allen. I have been recognized. 

Mr. Robert C. Byrd. The Chair has not recognized the Senator. 
The Acting President pro tempore. The Chair has recognized the 
Senator. 

79-586—77 10 



128 



M r. Robert C. Byrd. I beg the Chair's pardon. 

Mr. Allen. Mr. President, this amendment is debatable under the 
Senate rules, and I feel free to discuss the amendment at least as long 
as I might have had an opportunity to discuss the matter when I was 
seeking recognition earlier in the evening; 

Mr. Robert C. Byrd. Mr. President, will the Senator yield for a 
question only? 

Mr. Allen. Yes: I yield for a question. 

Mr. Robert C. Byrd. Would the Senator indicate for the benefit of 
all Senators how long he expects to hold the floor to discuss this dila- 
tory amendment ? 

Mr. Allen*. No — well now. the Senator — I did not yield for editorial 
comment. I yielded only for a question. [Laughter.] 

Mr. Robert C. Byrd. Mr. President, I strike the word "dilatory" for 
the moment. 

Mr. Allen. The matter, of course, is outside the rule of germaneness, 
and T feel free to discuss the bill inasmuch as time is limited under the 
cloture rule. 

Mr. President 

Mr. Robert C. Byrd. Mr. President, will the Senator yield for an- 
other question? 

Mr. Allen. Xo. I will not. I beg the Senator's pardon. 

I will yield for a question if the Senator wishes to propound it. 

Mr. Robert C. Byrd. Mr. President, with the respect for the Sena- 
tor — and I am going to ask a question, with the deepest of respect for 
the Senator — and with genuine affection for the Senator. I wonder if 
the Senator realizes that what he is doing here is obviously not for the 
purpose of correcting a mistake in the Journal of yesterday. What he is 
doing is obviously 

Mr. Allen. I agreed to yield for a question. 
• Mr. Robert C. Byrd. I am asking a question. I said I wonder if the 
Senator does not feel that what he is doing is not correcting a mistake 
in the Journal of yesterday but that what he is actually doing is merely 
attempting futilely to delay the working of the will of the Senate on a 
bill on which cloture has been invoked. Would the Senator answer that 
question ? 

Mr. Allen. Well, I will state that in the proceedings of today when 
the Senator from Alabama could not get recognition when he was yell- 
ing at such a volume that the rafters, if he had any, would have been 
shaking, and the distinguished Senator from West Virginia would 
not allow a unanimous-consent order that had been entered to go to 
the House Chamber at 12:15, and he insisted on ramming the cloture 
motion to vote, so I do not feel as if the Senator from West Virginia 
asks any question with clean hands wdien he was guilty of that 
procedure. 

Mr. Robert C. Byrd. Well, now. Mr. President, I resent that edi- 
torial comment also. 

Mr. Allen. Well. I will withdraw the offending editorial comment, 
then, as the Senator did. 

Mr. Robert C. Byrd. Mr. President, the Senator did not answer 
my question. Does he not realize that the Senator from West Virginia 
would certainly not interpose any objection to the correcting of a mis- 



129 



take in the Journal of yesterday ? I ask the Senator if he will answer 
that question. 

Mr. Allen. Well, I will state this: The Senator from Alabama 
called for the Journal to be read this morning, and if we had read the 
Journal, we would have been through with it hours ago and we would 
have been well into the debate on the lawyers' bill. 

But the Senator from West Virginia saw fit to call on the Chair to 
lay the cloture motion before the Senate and needlessly used up some 
2 hours of the Senate's time. 

He went to the point of having the Senate overrule the Parliamen- 
tarian and declare that something that the Parliamentarian had ruled 
was not proper. He amended the rules in that fashion, and he would 
not allow the Senate to comply with the unanimous-consent request : 
the Senator from Alabama was making a point of order and could not 
get recognized, and I am wondering if the Senator from West Vir- 
ginia would advise the Senator from Alabama — and I make this com- 
ment and ask unanimous consent that I not lose my right to the floor 
in making it 

The Acting President pro tempore. Is there objection ? The Chair 
hears none, and it is so ordered. 

Mr. Allen. I am just wondering if the Senator from West Virginia 
did not advise the distinguished Senator from Vermont (Mr. Leahy) , 
as to how he should discharge the duties of the Presiding Officer's 
chair prior to the Senator from Alabama's effort to gain recognition. 

Mr. Egbert C. Byrd. The Senator is asking me to answer that 
question ? 

Mr. Allen. Yes. and I got permission that that will not forfeit my 
right to the floor. 

Mr. Robert C. Byrd. I understand that I will answer that. 
Mr. Allen. Yes. I wish the Senator would. 

Mr. Robert C. Byrd. Mr. President, in answering the question 

Mr. Allen. The Senator might answer it yes or no. 

Mr. Robert C. Byrd. I might, but the Senator asked me to answer 

it 

Mr. Allen. Yes. 

Mr. Robert C. Byrd. And I will determine how to answer it. 

Mr. President, the Senator is very adroit, at placing the onus for 
delay on the leadership. He says that because we went through all the 
motions here today that the reading of the Journal was delayed. But 
he does not care to tell the Senate — and I say this respectfully — that 
with his great knowledge of the rules that upon the completion of that 
reading of the Journal he could do exactly what he is doing right now. 

Mr. Allen. The Senator has no intention of doing that, as he well 
knows, 

Mr. Robert C. Byrd. Aha, the Senator has no intention of doing it. 
but he could offer an amendment to it, and he could drag it out and 
drag it out ; he could move to adjourn, he could move to recess, he 
could get votes on those, he could move to reconsider, he could drag 
that out interminably. But because we. the Senate, went another direc- 
tion, my distinoruished friend now says that the cause for delay was the 
Senator from West Virginia. 

Mr. Allen. That is correct. 

Mr. Robert C. Byrd. But enough of that. 



130 



Yes. T asked the Chair 

Mr. Allex. Xot to recognize me. 

Mr. Robert C. Byrd. Xo, I did not Bay that. I asked the Chair to 
proceed with calling the quorum, and I have Been the Senator advising 
the Chair upon various occasions. 

May I say this: I am afraid the Senator's actions are eroding his 
own weapons, and eroding the legitimate weapons, of a minority of 
Senators. 

I hope that the Senator will take that into consideration as he per- 
sists in thwarting the Senate V will to come to a conclusion on a bill 
upon which cloture has already been invoked. 

Yes, I advised the Chair. But I did not advise the Chair not to rec- 
ognize Senator Allen. I advised the Chair to get that quorum call un- 
der way because under the rule we had reached that point, and once 
the quorum was established, to start the call of the roll. 

I advised the Chair. I noticed the Senator has advised the Chair 
upon various occasions. 

Mr. Allex. My advice does not have as much weight, I know. 

Mr. Robert C. Byrd. I answered the Senator's question. 

The Acting Presidext pro tempore. The Senator from Alabama is 
further recognized. 

Mr. Allex. 1 call for a vote. 

The Actixg Presidext pro tempore. The question is on agreeing to 
t he amendment of the Senator from Alabama. 
The amendment was agreed to. 



Ctvil Rights Attorxeys ? Fees Awards Act 

The Acting Presidext pro tempore. If there be no further amend- 
ment to the Journal, the Senate will now proceed to S. 2278 on which 
cloture has been ijivoked. and the clerk will state the bill by title. 

The assistant legislative clei'k read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 
Mr. Gold water addressed the Chair. 

The Actixg Presidext pro tempore. Under the previous order, the 
Senator from Arizona is recognized to call up an amendment which 
will Ix? considered germane. 

[S 16482] 

Mr. Allex. Mr. President. I believe the amendment of the Senator 
from Alabama is in order. I have no objection to laying it aside tem- 
porarily. 

The Actixg Presidext pro tempore. The Senator from Alabama's 
amendment is laid aside by the previous order which required the rec- 
ognition of the Senator from Arizona to call up an amendment which 
would be deemed germane, if he so chose to seek recognition. 

Mr. Allex. I follow that amendment, is that correct? 

The Actixg Presidext pro tempore. Did the Senator further speak ? 
The Chair did not hear the Senator. 

Mr. Ai .lex. I say. my amendment would follow then, would it not ? 



131 



The Acting President pro tempore. The Senator is correct. The 
Senator's amendment would follow. 
Mr. Allen. I thank the Chair. 

The Acting President pro tempore. The Senator now has 1 hour. 
Who yields time ? 

AMENDMENT NO. 2350 

First, the clerk will state the amendment of the Senator from 
Arizona. 

The assistant legislative clerk read as follows : 

The Senator from Arizona (Mr. Gold water) proposes amendment numbered 
2350. At the end of the bill, insert the following new section. 

Mr. Gold water. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with. [The text of Amend- 
ment No. 2350 is set forth at S 16445-46, supra.] 

The Acting President pro tempore. Is there objection? 

Without objection, it is so ordered. 

Mr. Gold water. Mr. President, this is a rather unusual situation. 
I presented this amendment yesterday and during the course of the 
debate I was asked by the Senator from Indiana (Mr. Bayh) if I 
would consider withdrawing the amendment because passage of the 
amendment might impair the passage of the bill in the House. An 
amendment similar to mine had been offered previously by the Sen- 
ator from Alabama. It was defeated by a yea and nay vote. 

My amendment does substantially the same thing, but there are 
four differences. I will mention them and then ask for a vote. 

I have been trying to get this amendment passed in this body, some 
measure, for probably 12 years, and while it has been passed twice, it 
has been defeated in the House twice. Why, I do not know. 

We are all acquainted with the fact that the Internal Revenue Serv- 
ice has the right, and exercises that right properly, in many cases in 
my opinion improperly, to audit the tax returns of American citizens. 

The first audit, in my opinion, is all right. But when we go past that 
stage, I think the American taxpayer should get a break. 

If the Government cannot prove that his taxes have been improperly 
paid in any way at all, I feel that the taxpayer should be paid by the 
Government for his lawyer fees, his auditor's fees, and any court costs 
which might accrue. 

We have not even been able to get the Internal Revenue Service to 
tell us how much they think this might cost. 

I must say, the whole purpose of my amendment is to stop this 
abuse that is being practiced year after year after year by the In- 
ternal Revenue Service. 

I will give an example which I used yesterday. 

I won a rather sizable lawsuit involving accusations made against 
me during my Presidential campaign. After receiving an award that 
with interest came to $96,000, 1 had to pay an additional either $8,000 
or $11,000. So I was in the hole. 

Ever since that happened, my name has been on the computer tape, 
year after year after year, for no reason at all. I actually think I am a 
little bit ahead of the Government because they find I am not only 



132 



right, but have overpaid them. As long as a name stays on that com- 
puter tape, it will be audited year after year after year. 

It has now got so that after the 3-year term lias expired, they ask, in 
a not too polite way, to give them permission to go on year after year 
a ft er year auditing the same account. 

That, basically, is what I am trying to get through. 

The four differences in my amendment with the one that was de- 
feated yesterday are that my amendment only applies when the In- 
ternal Revenue Service pursues a second audit; my amendment Covers 
accounting fees as well as legal costs ; my amendment covers expenses 
in administrative proceedings, as well as in court; my amendment 
covers suits brought by the taxpayer himself; as well as suits brought 
by the Government. 

Mr. President, as I said, I agreed yesterday under unanimous con-cut 
not to push for a vote so that the manager of the bill on the floor could 
advise me as to what he thought about this. I even approached the 
Senator from Massachusetts (Mr. Kennedy) and told him what I had 
done at Senator Bayh's request. But they are neither on the floor now. 

I will close by asking for a vote on this amendment. I hope it will 
pass. I think, frankly, that the abuses of the Internal Revenue Service 
are as much an abuse of American civil rights as the abuses we hear 
practiced once in awhile because of a man's color or religion. 

I think this business of life, liberty, and the pursuit of happiness 
cannot be achieved without some material goods. The way we are going 
in this country, they are taking 43 percent of all the money people make 
in this country. 

I think it is time we put the pressure on the Internal Revenue Service 
not to have their agents overly eager to see people go to jail or em- 
barrass them. 

Mr. President, that is all I have to say on it. I ask that my colleagues 
join me in voting for it. 

The Presiding Officer (Mr. Ribicoff). The question is on agreeing 
to the amendment of the Senator from Arizona. 

Mr. Allen. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? 

Mr. Gold water. I do not care for that. 

Mr. Allen. The Senator does not want them ? 

Mr. Goldwater. I would prefer not to have the yeas and nays. 
Mr. Allen. Very well. I withdraw my request. 

The Presiding Officer. The question is on agreeing to the amend- 
ment of the Senator from Arizona. 
The amendment was agreed to. 
Mr. Griffin addressed the Chair. 

Mr. Helms. Mr. President, I move to reconsider the vote by which 
the amendment was agreed to. 

Mr. Griffin. I move to lay that motion on the table. 
The motion to lay on the table was agreed to. 

AMENDMENT 23 71 

Mr. Griffin addressed the Chair. 

The Presiding Officer. The question now recurs on the amendment 
of the Senator from Alabama. 



133 



Mr. Griffin. Mr. President, will the Senator from Alabama 

The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen), for himself and Mr. Helms, proposes 
an amendment numbered 2371 : 

Strike lines 1 and 2 and substitute the following : "That this Act may be cited 
as the Tunney-Kennedy-Abourezk Civil Rights Attorney's Fees Awards Act of 
1976". 

Mr. Robert C. Byrd addressed the Chair. 

The Presiding Officer. The Senator from West Virginia. 

[S 16484] 

Mr. Gold water. Mr. President, will the Senator yield? 
Mr. Thurmond. Will the Senator yield ? 
Mr. Buckley. I yield. 

Mr. Thurmond. Mr. President, I ask unanimous consent that a 
member of my staff 

Mr. Goldwater. I thought the Senator yielded to me. I am sorry. 

The Presiding Officer. The Senator had yielded. 

Mr. Buckley. I had yielded to the Senator from Arizona. 

Mr. Goldwater. Mr. President, I ask unanimous consent that my 
amendment, which was just passed, be added to the bill and also be 
added to the Kennedy amendment, which will be a substitute. 

The Presiding Officer. Is there objection ? 

Mr. Muskie. Objection. 

Mr. Thurmond. Mr. President, will 

[S 16485] 

the Senator yield ? Will the Senator from New York yield ? 

The Presiding Officer. Did the Senator from Maine object to the 
request of the Senator from Arizona ? 

Several Senators addressed the Chair. 

The Presiding Officer. I had not quite heard the Senator. The 
Senator had interposed an objection, is that correct to the request of 
the Senator from Arizona ? 

Mr. Muskie. That is correct. 

The Presiding Officer. Objection is heard. 

[S 16489] 

Civil Rights Attorneys' Fees Awards Act 

Mr. Abourezk. Mr. President, a parliamentary inquiry. 
The Acting President pro tempore. The Senator will state it. 
Mr. Abourezk. Are we now on the civil rights attorneys' fees? 
The Acting President pro tempore. The clerk will state the bill by 
title. 

The legislative clerk read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of 
1975. 

Mr. Abourezk and Mr. Allen addressed the Chair. 
Mr. Abourezk. Mr. President, a parliamentary inquiry. 



134 



The Acting President pro tempore. The Senator will state it. 

Mr. Abourezk. Is the pending measure the Allen amendment to 
change the title of the bill ? 

The Acting President pro tempore. The Senator is correct. The 
amendment of the Senator from Alabama. 

Mr. Allen addressed the Chair. 

Mr. Abourezk addressed the Chair. 

Mr. Abourezk. Mr. President, do I still have the floor? 

The Acting President pro tempore. The Senator is correct. 

Mr. Abourezk. Mr. President, is the attempted change of the Senator 
from Alabama to change the title from whatever it is now to the 
Kennedy-Tunney- Abourezk Civil Rights Lawyers Relief Act? 

The Acting President pro tempore. That is the substance of the 
amendment. 

Mr. Abourezk. Regretfully, Mr. President, I move to table. 

Mr. Allen. Point of order, Mr. President. 

Mr. Abourezk. I ask for the yeas and nays, Mr. President. 

Mr. Allen. The Chair did not — a point of order. 

The Acting President pro tempore. The Senate will be in order. 

The Senator from Alabama will state the point of order. 

Mr. Allen. The Chair misstated what the amendment is. It does 
not call it the civil rights attorney's relief measure. 

It uses the very word of the amendment itself which is "awards*' 
lather than "relief." It does seek to give credit where credit is due by 
naming the bill for Mr. Kennedy. Mr. Abourezk, and Mr. Tunney. The 
CI 1 air misstated the amendment. 

The Acting President pro tempore. The Chair regrets the state- 
ment and the Chair asks the clerk to read the amendment. 

The legislative clerk read as follows : 

Strike lines 1 and 2 and substitute the following : 

That this act may be cited as the Tunney-Kennedy-Abourezk Civil Rights 
Attorney's Fee Awards Act of 1976. 

[S 16490] 

Mr. Abourezk. Mr. President I ask for the yeas and nays on my mo- 
tion to table. 

The Acting President pro tempore. Is there a sufficient second? 
Tli ere is a sufficient second. 

The yeas and nays were ordered. 

The Acting President pro tempore. The question is on aGreeino; to 
the motion to table. The yeas and nays have been ordered and the clerk 
will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Btrd. I announce that the Senator from Indiana 
(Mr. Bayh), the Senator from Texas (Mr. Bentsen) , the Senator from 
Florida (Mr. Chiles), the Senator from California (Mr. Cranston), 
the Senator from Xew Hampshire (Mr. Durkin), the Senator from 
Mississippi (Mr. Eastland), the Senator from Michigan (Mr. Philip 
A. Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Minnesota (Mr. Humphrey) , the Senator from Hawaii (Mr. Inouye), 



135 



| the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Wyoming (Mr. McGee), the Senator from South Dakota (Mr. Mc- 
Govern) , the Senator from Montana (Mr. Metealf ) , the Senator from 

I Minnesota (Mr. Mondale). the Senator from Xew Jersey (Mr. Wil- 
liams), the Senator from Xew Mexico (Mr. Montoya),*the Senator 

| from Xorth Carolina (Mr. Morgan), the Senator from Utah (Mr. 

I Moss), the Senator from Wisconsin (Mr. Xelson). the Senator from 
Rhode Island (Mr. Pastore) . the Senator from Mississippi (Mr. Sten- 

Inis), the Senator from Missouri (Mr. Symington), and the Senator 

I from California (Mr. Tunney ) are necessarily absent. 

I also announce that the Senator from Ohio (Mr. Glenn) and the 
Senator from Montana (Mr. Mansfield) are absent on official business. 

On this vote the Senator from Minnesota (Mr. Humphrey) is paired 
with the Senator from Xorth Carolina (Mr. Morgan). If present and 
voting the Senator from Minnesota would vote ; 'yea ? ' and the Senator 
from Xorth Carolina would vote "nay." 

I further announce that if present and voting, the Senator from 
Rhode Island (Mr. Pastore) would vote "yea." 

Mr. Gkiffix. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
Xew York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the 
Senator from Xew Mexico (Mr. Domenici) , the Senator from Arizona 
(Mr. Fannin), the Senator from Arizona (Mr. Goldwater), the Sen- 
ator from Oregon (Mr. Hatfield), the Senator from Idaho (Mr. Mc- 
Clure), the Senator from Oregon (Mr. Packwood), the Senator from 
Delaware (Mr. Roth) , the Senator from Vermont (Mr. Stafford) . and 
the Senator from Xorth Dakota (Mr. Young) are necessarily absent. 
The result was announced — yeas 52, nays 9. as follows : 



[Rollcall Vote Xo. 642 Leg.] 



YEAS— 52 



Abonrezk 

Baker 

Bartlett 

Bellmon 

Biden 

Brooke 

Bumpers 

Burdick 

Byrd, Harry F., Jr. 

Byrd. Robert C. 

Cannon 

Case 

Church 

Clark 

Culver 

Eagleton 

Fong 

Ford 



Oarn 

Crravel 

Griffin 

Hart, Garv 

Haskell 

Hathaway 

Hollings 

Huddleston 

Jackson 

Javits 

Johnston 

Laxalt 

Leahy 

Long 

MaeniLson 
Mathias 
McClellan 
Mclntyre 



Muskie 

Nunn 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott. Hugh 

Sparkman 

Stevens 

Stevenson 

Stone 

Taft 

Weicker 



NATS— 9 



Allen 

Curtis 

Hansen 



Helms 
Hruska 

Scott. William L. 



Talmadsro 
Thurmond 
Tower 



136 



NOT VOTING— 39 



liayh 


Groldwatet 


Montoya 


I Villi 


Hart. Philip A. 


Morgan 


Bentsen 


Ilartke 


Moss 


Brock 


Hatfield 


Nelson 


Buckley 


Humphrey 


Packwood 


\ Illlt'S 


Inouye 


Pastore 


Cranston 


Kennedy 


Roth 


Dole 


Mansfield 


Stafford 


1 tomenici 


McClure 


Stennis 


I )urkin 


McGee 


Symington 


Eastland 


McGovern 


Tunney 


Fannin 


Metcalf 


Williams 


Glenn 


Mondale 


Young 



So the motion to lay on the table was agreed to. 



ADDITIONAL STATEMENTS ON S. 22 78 

Mr. Muskee. Mr. President, earlier this afternoon I interposed an 
objection to Senator Goldwaters unanimous consent request that his 
amendment to the Senate text of the Civil Eights Attorneys' Fees 
bill be considered as well as an amendment to Senator Kennedy's 
pending amendment in the nature of a substitute. This objection was 
lodged in Senator Kennedy's absence to preserve the option of the 
Senate to consider Senator Kennedy's amendment on its own, without 
the Internal Revenue Service amendment included. As I understand, 
the objections of the IRS and certain Members of the House of Rep- 
resentatives to the Goldwater amendment would inevitably mean that 
this bill would die if it went to the House with that amendment intact. 
I certainly would not want that to happen, and I know that Senator 
Goldwater shares this view. I likewise share his frustration that we 
cannot get the House to focus constructively on his proposal. 

But the future of the Civil Rights Attorneys' Fees bill is at stake. 
This is clearly reflected in two letters received by Senator Kennedy 
today, from House Judiciary Committee Chairman Peter Rodino 
and Internal Revenue Service Commissioner Alexander. I ask unani- 
mous consent that these two letters to Senator Kennedy, which I think 
help explain why Senator Goldwaters amendment would threaten 
the viability of the underlying legislation, be included in the Record 
at this point. 

There being no objection, the material was ordered to be printed in 
the Record, as follows: 

Committee ox the Judiciaby, 

House of Representatives, 
Washington. D.C., September 23, 1976. 

Hon, Edward M. Kennedy, 
U.S. Senate, Russell Building, 
^Y'lshington, D.C. 

Dear Ted : I understand that the Senate is debating S. 2278, the Civil Rights 
Attorney's Fees Awards Act of 1976. which is substantially identical to H.R. 15400. 
which the Committee on the Judiciary has approved, and which is awaiting the 
Suspension Calendar. I have reviewed the amendment which Senator Goldwater 
offered, on September 22. 1976. to allow the reimbursement of attorney's fees 
to a prevailing taxpayer in Internal Revenue Service cases in which a second 
audit was ordered. (Cong. Record, S16445-46). 

It is important to note that during the House-Senate conference on H.R. 
10612, the Tax Reform Act of 1976, a provision for reimbursement of attorney's 
fees in all IRS cases, which was offered by the Senate, was deleted by the con- 
ferees after Commissioner Alexander testified in opposition to it (See p. 492 



137 



House Report 94-1515, Sections omitted from Senate amendment No. 25.) 
Although the Administration has not been specifically asked to take a position on 
Senator Goldwater's amendment, he stated on September 22, 1976, that his amend- 
ment, though more limited in the type of cases covered, would allow recovery 
of accounting fees as well as costs and would cover administrative proceedings 
as well as courts. (Cong. Record, S16446) 

I fear that Senator Goldwater's amendment — lacking a careful analysis by 
the Administration, and in light of the Administration's prior position on another 
IRS attorney fee provision — will jeopardize the Civil Rights Attorneyls Fees 
Awards Act of 1976. S. 2278 presently is a very narrow bill intended to enable 
private enforcement of civil rights acts. It does not involve federal spending, 
and has specifically been supported by the Administration at a hearing before the 
Subcommittee on Courts, Civil Liberties, and the Administration of Justice on 
December 3, 1976. 

The Committee is presently studying other bills, like Senator Goldwater's, 
which would go far beyond the "American Rule," or the "private attorney gen- 
eral" exception to it, and which may allow recovery against the Federal Govern- 
ment. We hope to take action next Congress on such bills. However, I fear that 
quick action on the Goldwater amendment, which goes far beyond the narrow 
provisions of S. 2278 would defeat the bill. 
Sincerely yours, 

Peter W. Rodino, Jr., Chairman. 



Department of the Treasury, 

Internal Revenue Service, 
Washington, D.C., September 23, 1976. 

Hon. Edward M. Kennedy, 
T'.S. Senate, 
Washington, B.C. 

Dear Senator Kennedy : This is in response to your letter of September 23, 
1976, in which you ask for the views of the Internal Revenue Service on an 
amendment offered by Senator Goldw T ater to S. 2278, the Civil Rights Attorneys' 
Fees Awards Act. 

Briefly stated, this amendment would provide for the reimbursement of 
expenses incurred by a taxpayer in connection with a deficiency which is pro- 
posed subsequent to a deficiency which the taxpayer accepted, or subsequent to 
notification to the taxpayer that there would be no change in tax liability, when 
the action of the Service, after final administrative or judicial review, results in 
no increase in tax from that previously agreed to. 

It is our view that existing administrative safeguards afford taxpayers 
adequate protection against the reopening of cases to raise frivolous issues. 

The Service will not reopen any case closed after examination by a district 
office or service center to make an adjustment unfavorable to the taxpayer unless : 
(1) there is evidence of fraud, malfeasance, collusion, concealment or mis- 
representation of a material fact; or (2) the prior closing involved a clearly 
defined substantial error based on an established Service position existing at the 
time of the previous examination ; or (3) other circumstances exist which indicate 

[S 16491] 

failure to reopen would be a serious administrative omission. 

However, our most serious objection is to the concept itself — that taxpayers 
should be reimbursed by the Government for expenses incurred in the settlement 
of a tax dispute. The proposal will set a precedent which may lead to further 
and more costly demands for legislation extending the principle of reimburse- 
ment under other circumstances. For FY 1975, IRS audited 2.465 million tax 
returns and closed 2.9 million delinquent accounts. Once the concept of reim- 
bursement is introduced, it will be very difficult to limit its application to a par- 
ticular taxpayer or tax action. 

It is hoped that the Congress would defer its action on this very important 
matter until it has been more thoroughly considered. We will be pleased to study 
this matter in greater depth and submit a report of our views if that is desired. 

With kind regards, 
Sincerely, 

Donald C. Alexander, Commissioner. 



138 



Mr. TrxxKY. Mr. President, on Tuesday of this week the junior Sen- 
ator from Alabama asked rhetorically why I was not present in this 
( 'h amber if this bill, which I had introduced, the Civil Rights Attor- 
ney's Fees Awards Act, was so important to me. He then proceeded to 
answer his question. He stated that I was engaged in a tough light for 
reelection but not withstanding my campaign battle, I would be present 
for this cloture vote today. 

He was correct on both points : I am here and I am engaged in an 
extremely tough election. But every Senator realizes that the great 
issues involved in this bill do not involve granting relief to attor- 
neys. Senator Kennedy yesterday challenged Senator Allen to show a 
single case of a lawyer getting rich on civil rights cases. It just docs 
not happen. In fact, a 1975 study undertaken by Leslie Helfman of 
I he Antioch Law School indicates that of the 140 most recent cases de- 
rided prior to Alyeska, civil rights cases ranked near the bottom with 
fees averaging $37 per hour compared to $181 per hour for the high-? 
est ranking field of antitrust law. 

If any relief is accorded by the passage of this bill, it will be granted 
to those individuals who have been unlawfully deprived of their con- 
stitutional rights. That is why a majority of the Senate has supported 
this bill through more than a dozen rollcall votes and have opposed 
the dilatory amendments that have been offered during the last 2 days 
of debate. That is why a dozen Senators believed that this bill was so 
important that they adjusted their schedules and canceled appoint- 
ments in order to take turns managing this bill. Mr. President, I 
would like to express my deepest appreciation to Senators Robert C. 
Byrd, Cranston, Abourezk, Bayh, Brooke, Eagleton, Gravel, Hath- 
away, Javits, Kennedy, Mathias, and Hugh Scott for their diligence 
and leadership in pressing for passage of this legislation. 

I would also like to express my special thanks to Senator Phil Hart 
of Michigan for his solid work on behalf of this bill in the Judiciary 
Committee. 

Mr. President, the action that I ask the Senate to take today is far 
from unique. Fifty-four Federal statutes presently authorize the award 
of attorney fees in areas as diverse as antitrust, freedom of informa- 
tion, consumer product safety, banking, international relations, and 
patents, to name only a few. S. 2278, when enacted, will close a loop- 
hole in our present civil rights enforcement laws. 

In Alyeska Pipeline Service Corp. v. Wilderness Society, 421 U.S. 
240 (1975), the Supreme Court expressly stated that the lower Fed- 
eral courts had no inherent equity power to award attorney's fees in 
civil rights cases absent statutory direction. This bill creates the nec- 
essary authorization and is addressed to the key questions raised in 
the opinion. The bill states, in part : 

The court, in its discretion, may allow the prevailing party, other than the 
Tinted States, a reasonable attorney's fee as part of the costs. (Emphasis added.) 

The award, Mr. President, must be reasonable and the courts have 
been exceptionally clear in stating their views on this aspect of the 
problem. In Johnson v. Georgia Highway Express, Inc., 488 F. 2d 
714 (5th Cir. 1974) the court of appeals listed 12 factors to be consid- 
ered in computing the fees including the time and labor required, the 
novelty and difficulty of the question involved, the skill needed to 



139 



present the case, the customary fee for similar work and the amount 
received in damages, if any. 

S. 2278 also provides for awards to the prevailing party, a more 
moderate approach than limiting recovery to prevailing plaintiffs. This 
was designed to avoid bringing vexatious or harassing lawsuits by 
allowing the award of fees to prevailing defendants under those cir- 
cumstances. United States Steel Corp. v. United States, 519 F. 2d 359, 
364 (3rd Cir. 1975) . At the same time, existing case law is clear on the 
point that prevailing plaintiffs "should ordinarily recover our at- 
torney's fee unless special circumstances would render such an award 
unjust." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 
(1968) (per curiam). 

Finally, S. 2278 states that the fees are to be allowed in the discre- 
tion of the court. That discretion has been included in the most recent 
civil rights statutes allowing attorneys' fees and the standards enunci- 
ated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 
( 1 968 ) have been more than ample. 

Thus, Mr. President, we have before us a moderate, rational plan 
carefully drafted to insure that the constitutional rights of our people 
may be adequately protected. I ask that the bill be passed. 

[S 16493] 

The Acting President pro tempore. The clerk will report first. 
The assistant legislative clerk read as follows : 

Senate Resolution 151, providing for the installation and use of electron u> 
voting equipment in the Senate Chamber. 

Mr. Allen. I make the point of order, Mr. President, that it is out 
of order, cloture having been invoked. 

Mr. Robert C. Byrd. I asked unanimous consent that it be consid- 
ered immediately. 

Mr. Allen. I raised the point of order that it is out of order, Mr. 
President. 

Mr. Robert C. Byrd. But the clerk stated the title of the resolution. 
I asked unanimous consent for consideration of the resolution at this 
time. 

Mr. Allen. I raised the point of order, Mr. President, that it is out 
of order. 

The Acting President pro tempore. The Senator has raised the 
point of order. 

Mr. Allen. Before it was ever read, I insist on the point of order. 

Mr. Robert C. Byrd. I believe the record will show that the clerk 
was stating the title of the resolution before an objection was made. 

Mr. Allen. No. I made the point of order, and the Chair said the 
clerk should report it first. 

The Acting President pro tempore. The point at which the clerk 
had arrived at reading is not material. The point of order is raised 
that it is not in order to offer the resolution at this time, under cloture, 
and the point of order is well taken. 

Mr. Robert C. Byrd. But I ask unanimous consent that the resolu- 
tion be immediately considered. Certainly, it is in order to make the 
request. 

Mr. Allen. And I make the point of order that it is out of order. 



140 



Mr. Rokeht C. Byrd. Very well. I ask unanimous consent that T may 
be permitted to offer the resolution. 

Mr. Allex. It is out of order. I raise that point of order. 

The Acting President pro tempore. The point of order is sus- 
tained; 

Mr. Robert C. Byrd. Mr. President, I wish the Senator would not 
object to the resolution being- offered. 

Mr. Allex. I am opposed to the resolution, as the Senator knows. 
I have so advised him. 

Mr. Robert C. Byrd. The Senator has every right to oppose the 
resolution. 

Mr. Allex. I am opposing it right now. 



UXAXIMOUS-COXSEXT REQUEST 

Mr. Robert C. Byrd. I call attention again, Mr. President, to the 
fact that committee reports are being held at the desk because of an 
objection to their being morning business. Senators who are interested 
in filing committee reports will be able to see and understand why com- 
mittee reports are not being allowed to come in. 

Mr. Allex. I accept full responsibility, Mr. President. 

Mr. Robert C. Byrd. I regret, Mr. President, that the Senate is look- 
ing bad. The Senator is within his rights to object to there being a pe- 
riod for the transaction of routine morning business. Numerous Sena- 
tors undoubtedly have statements at the desk. They may have issued 
releases on the statements. Those statements cannot come in unless there 
is a period for morning business. 

Mr. Loxg. Mr. President, will the Senator yield ? 

Mr. Robert C. Byrd. I yield. 

Mr. Loxg. I must say, Mr. President, that whether the Senate is 
looking good or looking bad depends upon whether or not one agrees 
with the bill that some Senators do not think is a good bill. 

Some people may feel that the Senator from Alabama is correct in 
believing that this is a bad bill, to pay everybody's lawyer's fee, that it 
would undoubtedly lead to a situation where, in due course, we will just 
have to pay any time anyone files a successful lawsuit and require that 
the Government pay the fee for every body. 

When you start out with this, you cannot decline to pay the lawyer's 
fee for those who sue because of sex discrimination, because of disabil- 
ity discrimination, because of any type of discrimination whatever, 
with respect to those who have a meritorious lawsuit. 

Then, in due course, both sides will be paid, as we do with the pov- 
erty program now. We pay lawyers to sue the Government and pay 
lawyers to defend the Government. It always seems to me that nobody 
but an idiot would pay a lawyer to sue himself, but that is what we are 
doing now. 

So, one may feel that we are going to have more lawyers than there 
arc working people in this country, at this rate, and that is a very bad 
bill. This may be one of the Senate's finest hours. It depends on one's 
viewpoint. 



141 



I hope I may be pardoned in using a quotation — the way things are 
these days — but it might be well to abide by the admonition : "Judge 
not. lest ye be judged." 

It depends on how one looks at these things. 

I appreciate the acting majority leader's problems in moving this 
matter to a vote. I also appreciate the deep sense of dedication on the 
behalf of one who feels, even if he be the only man opposing a piece of 
legislation, that he ought to resist, and resist with all the powers pro- 
vided him by the rules. 

I do not think anybody — certainly the Senator from Louisiana is 
not — is contending that the Senator from Alabama is not entitled to 
his rights under the rules. I have experienced frustration both ways. 
I sometimes think, and I find great sympathy for the acting majority 
leader, that it is a much greater burden to have to hear speeches with 
which one disagrees than it is to make those speeches. At the same time, 
we pay a price for liberties that we enjoy in this great country. 

I believe we ought to recognize that all of us have the duty under 
our form of government to resist when we believe a bad mistake is 
being made, because if we believe strongly enough, we ought to resist 
as strongly as the rules and our conscience dictate. I do not think any 
of us have the right to be keeper of the other fellow's conscience. I think 
that is something that the Maker entrusted to the individual, not to 
those of us who do not possess that same kind of conscience. 

I urge my good friend, who has my complete admiration — he is one 
of the great leaders of this Senate of all time — to restrain his feeling 
of frustration that sometimes come when a minority stands in the way, 
and keep in mind that there will be times that even the Senator from 
West Virginia, great leader that he is, will find himself in the minority. 
I have found him to be a great battler for his side when he does find 
himself in the minority. It is just one of those things about freedom 
that works both ways. 

Mr. Allen. Will the Senator yield ? 

Mr. Robert C. Byrd. Mr. President, may I respond to my friend 
from Louisiana ? 
Mr. Allen. Yes. 

Mr. Robert C. Byrd. Mr. President, I hope I have not given the im- 
pression that I am attempting to keep anyone's conscience. I have 
problems enough with my own. 

May I say further to my friend from Louisiana that the objection, 
in my judgment, to a period for routine morning business so that 
committee reports may come in is not a necessary weapon in the arsenal 
of any Senator who want to oppose the pending bill. I may vote 
against this bill myself. 

I recognize that the Senator from Alabama is within his rights to 
object to such a request, but I cannot see how objecting to morning 
business — and letting committee reports come in at this time and let- 
ting Senators' statements come in and be entered into the Record — is 
furthering the able Senator's objective in opposing the bill. We had 
no period for routine morning business today. That is the thing I am 
talking about. 

Mr. Long. Mr. President, I assume the Senator realizes that that is 
something for the Senator from Alabama to decide, whether it helps 



142 



his position or injures his position. In the last analysis, he is the one 
who is privileged to be the judge of what hurts his cause. 

Mr. Robert C. Byrd. That is fine. He objected. I hope the able Sen- 
ator from Louisiana will let the able Senator from Alabama defend 
himself. One on one is enough, without two. The Senator from Ala- 
bama is perfectly capable of defending himself. 

Mr. Long. Mr. President, in all fairness, I know that the Senator 
from West Virginia feels somewhat sorry for himself, having the bur- 
den of this bill imposed on him. I know that the sponsors of this bill 
are not here managing it, it is left with the distinguished Senator from 
West Virginia to do what he can with this situation. 

I know that that is not a new experience for the Senator from West 
Virginia to do that, keeping the shop while others go on to look after 
other affairs and other matters that are of pressing interest to them. 
But I hope that the Senator, who has every right to feel somewhat 

[S 16494] 

sorry for himself at this moment, will realize that there may be some 
others who have every right to feel sorry for themselves and their 
plights. 

Mr. Robert C. Byrd. Mr. President, I do not feel sorry for myself. 
When I leave here, I am going to go home and get my fiddle and play 
for my grandchildren until the debates start, and I shall forget about 
this Senate Avorld. So I do not feel sorry for myself. I am 59 years old 
and I have had plenty of opportunities to feel sorry for myself over 
the years, but I long ago got past that. 

I do not need anyone to defend me. I shall take my knocks and my 
lumps, and I have had my share of them, but I do not feel sorry for 
myself. I asked for this job and I just do the best I can. 

When we walk out of here today. I shall shake hands with the 
Senator from Alabama, and my affectionate friendship for him will 
be as strong as it has ever been. I know he will have the same feeling 
for me. 

Mr. Aleex. I am going to renew my pledge to vote for the distin- 
guished Senator for majority leader. 

Mr. Robert C. Byrd. Mr. President, unless the Senator wants me 
to yield, I shall go on to other matters. 

Mr. Aeeex. Let me state, before the Senator makes the request, that 
I appreciate very much the remarks of the distinguished Senator from 
Louisiana (Mr. Long), the wisdom of his remarks and the diplomacy 
of his remarks and the statesmanship of his remarks. It is not too 
popular right now to stand in the way of a steamroller. It is not too 
popular and not too safe, for that matter, in many respects. 

I call attention to the fact that when we adopt a cloture, that is a 
two-way street. It certainly pinches very tightly those who are oppos- 
ing a bill, but there are certain restraints that cloture also puts on 
those who are seeking to advance legislation. One of those restraints is 
that rule XXII savs that when cloture is adopted, "then said measure, 
motion, or other matter pending before the Senate, or the unfinished 
business, shall be the unfinished business to the exclusion of all other 
business until disposed of." 



143 



This is a good opportunity for me to say that I wish that the Senate 
would exercise a little more discretion about being so cloture happy, 
if Every time a cloture motion is entered, then we end up with 63 votes 
I |jj for it, irrespective of the merits or demerits of the bill. So I hope that 
those who vote cloture — and I have had many who voted for cloture 
I and, within 5 minutes thereafter, would come over and ask me to allow 
la bill other than the bill under consideration to be taken up. This is 
■fust an illustration of one instance where the shoe does pinch a little 
; bit. 

The distinguished Senator from West Virginia, of course, recog- 
jlj nizes that I know that there are some committee reports there that have 
|!| bills that the Senator from Alabama does not think are in the best 
ij interests of the country. I shall say this to the distinguished Senator 
![ from West Virginia : He has made the point that I am keeping Sen- 
i ators from inserting statements in the Record. I do not see anybody 
I here who has a statement to introduce in the Record. If any wish the 
[ opportunity to introduce a statement in the Record, I wish they would 
I so indicate. There is nobody here wanting to put a statement in the 
j Record. 

Mr. Robert C. Byrd. Mr. President, how many Senators are here ? 
Six. 

Mr. Allen. Those are the only ones we are talking about. I do not 
jj guess anybody will come in to offer a statement. 

I wouid be willing to do this to comply with the request of the Sen- 
I a tor from West Virginia: Have unanimous consent that any Senator 
ij may insert a statement, or to have a brief period of morning business 
J confined exclusively to the presentation of statements, and statements 
i only, by Members of the Senate. That will remove what appeared to be 
]j the chief objection, the chief purpose of the distinguished Senator from 
West Virginia. 

Mr. Robert C. Byrd. The Senator would violate, it seems to me, his 
I own admonition on rule XXII. 

Mr. Allen. I appreciate the Senator's caution. 

Mr. Robert C. Byrd. I am going to make the request, now that the 
If Senator has suggested it. 

Mr. Allen. I am glad the Senator does not want me to violate it. 

Mr. Robert C. Byrd. I want the Senator to violate it. He just stated 
Ij that once cloture has been invoked under rule XXII, we should not pro- 
I ceed to other matters. 

Mr. Allen. I stand corrected. 

Mr. Robert C. Byrd. I shall take the Senator's advice. 

[122 Cong. Rec. S 16565 (daily ed. Sept. 24, 1976) ] 

Civil Rights Attorneys' Fees Awards Act 

The Presiding Officer. The clerk will report the unfinished busi- 
| ness. 

The assistant legislative clerk read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorneys' Fee Awards Act of 1975. 
Mr: William L. Scott. Mr. President, I have an amendment at the 
I desk and of course have 1 hour to debate this matter, as each Senator 



79-586—77 11 



144 



has. However, I am not going to present my amendment or talk for an 
hour. 

I am concerned about this bill. I do not consider it a good bill, and I 
voted against Cloture. But I am more concerned about the future of the 
Senate and about the action that we have taken on the floor of the Sen- 
ate that has promoted perhaps a little stiffening on each side. 

The distinguished Senator from West Virginia, the acting majority 
leader (Mr. Robert C. Byrd) has presented his position in a very able 
manner. It has been diametrically opposed by the distinguished Sen- 
ator from Alabama (Mr. Allen). 

I hear from among my colleagues suggestions that sometime in the 
future we may make it easier to impose cloture, that we may make 
cloture more meaningful, so that after cloture is imposed, we would 
not have any extended period of time in which to debate an issue. 

I hope that some middle ground can be found, because I hear people 
on the other side indicate that if the rules are strengthened, that if they 
are made more strict, they are going to object to all unanimous-consent 
requests. 

I believe the distinguished Senator from West Virginia, the acting 
majority leader (Mr. Robert C. Byrd), well knows that there is some 
innovation that can arise ; that, regardless of the rules, Members of the 
Senate can find a way to have extended debate. 

We have conflicts with our committees meeting from time to time. 
Sometimes we are not able to meet because of extended debate on the 
floor of the Senate. 

Mr. President, I understand that we have a committee which is 
considering possible changes in the Senate rules so that we might 
meet in our committees in the morning and then the full Senate meet in 
the afternoon or evening. I do not make any comment as to the 
desirability of bringing that about. It may be, in part, the answer. 
However, I think we might also consider whether we could have our 
committees meet one day and have the Senate meet on the following 
day, alternating between the committee sessions and floor considera- 
tion. It seems to me that each Senator ought to find some way in 
which he could present his views to the full Senate and have them be 
given some consideration. 

Oftentimes, under the procedure that we have, a given Senator talks 
to an empty Chamber and the views that he expresses on a bill or an 
amendment which he offers are not heard by very many Members of 
this body. A Senator might have a good idea, and it might be well for 
his colleagues to hear his arguments. 

In my opinion, we ought to find some way so that we can maintain 
a quorum on the floor of the Senate. Some time ago during the con- 
sideration of the tax bill, as I recall, an effort was made to get the 
differing sides together for a limited discussion of around 10 minutes 
on the key issues in controversy with many of the Senators in the 
Chamber to hear the debate. That seemed to work out fairly well. 

The entire gist of what I am saying is that we ought not to go to 
extremes on both sides so that those who believe in unlimited debate 
will abuse the privileges and those who feel that they have a responsible 
position in the leadership, perhaps in the majority party, wanting to 
get. substantial legislation passed, go to the other extreme. It was 
illustrated yesterday, when a Member did not feel that he was being 



145 



recognized, and had to shout several times. "A point of order." He 
was ignored by the Presiding Officer. I do not believe we ought to have 
to resort to such things as that. 

The thrust of my argument is that we should try to find some 
common ground so each Senator can be heard on any issue in which 
he is interested for a reasonable period of time and there would be 
some people here, on the floor of the Senate, to hear what he has to 
say. In this way we would not have to take the extreme measures of 
having a series of time-consuming quorum calls, and could avoid any 
feeling that a given Senator is not being shown the courtesy that he 
should receive while still providing him an opportunity to present 
his views. 

One again, Mr. President, I do not intend to offer the amendment 
pending at the desk. I have material that I had previously prepared 
which could take around 2 hours to discuss. I was going to offer an 
amendment that, although it could be germane, seemed to relate more 
directly to the busing issue than it did to the attorneys' bill. I think 
it is perhaps under the same section of the code and might therefore 
be germane. But I raise this general ques- 

[S 16566] 

tion for the consideration of the distinguished Senator from Alabama 
(Mr. Allen) who may be the champion of the conservative cause here 
in this body, and our distinguished acting majority leader, the Sen- 
ator from West Virginia (Mr. Robert C. Byrd). I believe that, some- 
how, we have to find a common meeting ground to which all of us can 
come and quit some of the bickering that lias been evident on the floor 
of the Senate. 

Mr. President, I yield the floor. 

Mr. Allen. Mr. President. 

The Presiding Officer (Mr. Burdick) . The Senator from Alabama 
is recognized. 

Mr. Allen. I commend the distinguished Senator from Virginia for 
his very wise words and for the suggestions he has made for the im- 
provement of the procedure in the Senate and the need to guarantee 
to each Senator the right to be heard and the right to be recognized on 
the floor for any action he might choose to call for, consistent with the 
Senate Rules. I appreciate very much his comments on that matter and 
his comments on the lawyers' bill. 

Mr. Allen. Mr. President, will the Senator yield ? 

Mr. Robert C. Byrd. Yes. 

Mr. Allen. Mr. President, the imposition of cloture from, time to 
time is rushed into by the Senate, and it puts those who oppose legis- 
lation at a disadvantage. But, at the same time, I must say, Mr. Presi- 
dent, the imposition of cloture and the procedure that follows the im- 
position of cloture can sometimes be highly constructive and can 
operate in the best interests of the country. 

We see here examples of that in that it causes the Senate to be more 
selective in its choice of measures that are allowed to be brought up, 
and it prevents passage of measures in short order that have vast impli- 
cations. But it would not be too bad in some respects — I would not be in 
favor of it, but it would not be too bad in some respects — to have the 



146 

Senate operate under perpetual cloture. I think it might be very good 
in some ways in that it would hold down the number of bills that pass 
and would make the Senate much more selective in the bills they do 
pass. 

[S 16567] 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

AMENDMENT NO. 2388 

Mr. Allen. Mr. President, I call up an amendment and I would like 
to have it stated so that we would not be voting on the pending 
substitute. 

I call up and ask that the following amendment be stated. 
The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) proposes amendment No. 2388: On 
page 1, line 9, strike the word "costs'." and substitute in lieu thereof the follow- 
ing : "costs, but in no event shall any court of the United States order or other- 
wise require any officer of the United States or any State or local public official 
to pay to a prevailing party a reasonable attorney's fee as part of the costs 
except in the event such officer or State or local public official has acted in a con- 
tumacious or vexatious manner.". 

[S 16595] 

Civil Rights Attorneys' Fees Awards Act — S. 2278 

AMENDMENT NO. 240 5 

(Ordered to be printed and to lie on the table.) 

Mr. Thurmond (for himself and Mr. William L. Scott) submitted 
an amendment intended to be proposed by them jointly in connection 
with the bill (S. 2278) , supra. 

AMENDMENTS NOS. 2406 THROUGH 2416 

( Ordered to be printed and to lie on the table. ) 

Mr. Thurmond submitted 11 amendments intended to be proposed 
by him in connection with the bill (S. 2278) , supra. 

AMENDMENTS NOS. 2418 THROUGH 24 39 

( Ordered to be printed and to lie on the table.) 

Mr. Allen submitted 22 amendments intended to be proposed by 
him in connection with the bill (S. 2278) , supra. 

[122 Cong. Rec. S 16649 (daily ed. Sept. 27, 1976) ] 

Privilege of the Floor — S. 2278 

Mr. Aeourezk. Mr. President, I ask unanimous consent that two 
members of my staff, Irene Margolis and Lynn Jacobson, have the 



147 



privilege of the floor from now until the completion of the civil rights 
attorneys' fees measure. 

The Acting President pro tempore. Without objection, it is so 
ordered. 

[S 16652] 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Robert C. Byrd. Mr. President, will the Chair state the pending 
business before the Senate % 

The Presiding Officer. The pending business is amendment No. 
2388 to the bill S. 2278. The yeas and nays have not been ordered. 

Mr. Robert C. Byrd. I thank the Chair. 

Mr. Allen. Mr. President, I call for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Allen. Mr. President, have the yeas and nays been ordered on 
the Kennedy amendment ? 

The President Officer. The yeas and nays have not been ordered 
on the Kennedy amendment. 

Mr. Abourezk. I ask for the yeas and nays on the Kennedy amend- 
ment. 

The Presiding Officer. It would take unanimous consent. 

Mr. Abourezk. Mr. President, I ask unanimous consent that it be in 
order at this time to ask for the yeas and nays on the Kennedy amend- 
ment. 

The Presiding Officer. Is there objection? Without objection, it is 
so ordered. 

Mr. Abourezk. Mr. President, I ask for the yeas and nays on the 
Kennedy amendment. 

The Presiding Officer. Is there a sufficient second? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Javits. Mr. President, a parliamentary inquiry. 

The Presiding Officer. The Senator will state it. 

Mr. Javits. Has the time for tributes to our fellow Senators ended ? 

Mr. Robert C. Byrd. Mr. President, if I might advise the Senator, 
the period for tributes for Senator Symington and Senator Philip 
Hart has been set over until Thursday. Any Senators who wish to 
submit their tributes today may do so. They will not be printed in to- 
day's Record, but will be saved until the Thursday Record. 

Mr. Javits. I thank the acting majority leader. 

Mr. Helms. Mr. President, I suggest the absence of a quorum. 

The Presiding Officer. The clerk will call the roll. 

The second assistant legislative clerk proceeded to call the roll. 

Mr. Helms. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded. 

The Presiding Officer. Without objection, it is so ordered. 



148 



[S 16656] 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Abourezk. Mr. President, I move to table the pending Allen 
amendment, and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 



Quorum Call 
Mr. Allen. I suggest the absence of a quorum. 

The Presiding Officer. The clerk will call the roll for the purpose 
of ascertaining the presence of a quorum. 

The second assistant legislative clerk called the roll and the follow- 
ing Senators entered the Chamber and answered to their names: 

[Quorum No. 54 Leg.] 

Abourezk Goldwater Ribicoff 

Allen Griffin Sparkman 

Byrd. Harry F., Jr. Helms Stone 

Byrd. Robert C. Javits Thurmond 

Case Morgan Young 

The Presiding Officer. A quorum is not present. The clerk will call 
the nan^s of the absent Senators. 

The second assistant legislative clerk resumed the call of the roll. 

Mr. Robert C. Byrd. Mr. President. I move that the Sergeant at 
Arms be instructed to request the attendance of absent Senators. 

Mr. Abourezk. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion of 
the Senator from West Virginia. The yeas and nays have been ordered, 
and the clerk will call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Nevada (Mr. Cannon), the Senator from 
Towa (Mr. Culver), the Senator from Michigan (Mr. Philip A. Hart), 
the Senator from Indiana (Mr. Hartke). the Senator from Kentucky 
(Mr. Hudclleston), the Senator from Minnesota (Mr. Humphrey), 
the Senator from Louisiana (Mr. Long), the Senator from Wyo- 
ming (Mr. McGee), the Senator from Minnesota (Mr. Mondale). the 
SoTiator from New Mexico (Mr. Montoya), the Senator from Utah 
(Mr. Moss), the Senator from Maine (Mr. Muskie), the Senator from 
Mississippi (Mr. Stennis), the Senator from Illinois (Mr. Steven- 
son), and the Senator from California (Mr. Tunney) are necessarily 
absent. 

I further announce that the Senator from Florida (Mr. Chiles), the 
Senator from New Hampshire (Mr. Durkin), the Senator from Ohio 
(Mr. Glenn), and the Senator from Montana (Mr. Mansfield) are 

absent on official business. 



149 



Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from New Mexico 
(Mr. Domenici), the Senator from Wyoming (Mr. Hansen), the Sen- 
ator from Pennsylvania (Mr. Hugh Scott), the Senator from Ver- 
mont (Mr. Stafford), the Senator from Ohio (Mr. Taft), and the Sen- 
ator from Texas (Mr. Tower) are necessarily absent. 

I further announce that the Senator from Hawaii (Mr. Fong) is ab- 
sent attending the funeral of a friend. 

The result was announced — yeas 64, nays 4, as follows : 

[Rollcall Vote No. 648 Leg.] 



YEAS — 64 



Abourezk 


Haskell 


Nunn 


Baker 


Hatfield 


Packwood 




jtiaLiiaw ay 


r astore 


Bayh 


Helms 


Pearson 


Bellmon 


Hollings 


Pell 


Brooke 


Hruska 


Percy 


Bumpers 


Inouye 


Proxmire 


Bur dick 


Jackson 


Randolph 


Byrd, Harry F., Jr. 


Javits 


Ribicoff 


Byrd, Robert C. 


Johnston 


Roth 


Case 


Kennedy 


Schweiker 


Church 


Laxalt 


Scott, William 


Clark 


Leahy 


Sparkman 


Cranston 


Magnuson 


Stevens 


Eagleton 


Mathias 


Stone 


Eastland 


McClellan 


Symington 


Fannin 


McClure 


Talmadge 


Ford 


McGovern 


Thurmond 


Garn 


Mclntyre 


Williams 


Gravel 


Metcalf 


Young 


Griffin 


Morgan 




Hart, Gary 


Nelson 






NAYS — 4 




Allen 


Goldvvater 


Weicker 


Biden 








NOT VOTING— 32 




Beall 


Fong 


Montoya 


Bentsen 


Glenn 


Moss 


Brock 


Hansen 


Muskie 


Buckley 


Hart, Philip A. 


Scott, Hugh 


Cannon 


Hartke 


Stafford 


Chiles 


Huddleston 


S tennis 


Culver 


Humphrey 


Stevenson 


Curtis 


Long 


Taft 


Dole 


Mansfield 


Tower 


Domenici 


McGee 


Tunney 


Durkin 


Mondale 



So the motion was agreed to. 

The Presiding Officer (Mr. Gary Hart). With the addition of 
Senators voting who did not answer the quorum call, a quorum is now 
present. 



150 



Civil Rights Attorneys' Fees Awards Act 



The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Right s Attorneys' Fees Awards Act of 1975. 

The Presiding Officer. The question is on agreeing to the motion 
to table the amendment of the Senator from Alabama. The yeas and 
nays have been ordered and the clerk will call the roll. 



The assistant legislative clerk called the roll. 

Mr. Robert C. Btrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Nevada (Mr. Cannon), the Senator from 
Iowa (Mr. Culver), the Senator from Michigan (Mr. Philip A. Hart), 
the Senator from Indiana (Mr. Plartke). the Senator from Kentucky 
(Mr. Huddleston), the Senator from Wyoming (Mr. McGee). the 
Senator from Minnesota (Mr. Mondale). the Senator from New Mex- 
ico (Mr. Montoya), the Senator from Utah (Mr. Moss), the Senator 
from Maine (Mr. Muskie), the Senator from Mississippi (Mr. Sten- 
nis), and the Senator from California (Mr. Tunney) are necessarily 
absent. 

I further announce that the Senator from Florida (Mr. Chiles), 
the Senator from New Hampshire (Mr. Durkin), the Senator from 
Ohio (Mr. Glenn), and the Senator from Montana (Mr. Manfield) 
are absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Air. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from New Mexico 
(Mr. Domenici), the Senator from YYYommji (Mr. Hansen), the Sen- 
ator from Idaho (Mr. McClure), the Senator from Pennsylvania (Mr. 
Hugh Scott), and the Senator from Ohio (Mr. Taft) are necessarily 
absent. 

I further announce that the Senator from Hawaii (Mr. Fong) is 
absent attending the funeral of a friend. 

The result was announced — yeas 52, nays 20. as follows : 



[S 16657] 



[Rollcall Vote No. 649 Leg.] 



YEAS— 52 



Abourezk 

Baker 

Bayh 

Bellmon 

Biden 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Eagleton 

Ford 

C ravel 

Griffin 

Hart, Gary 



Haskell 

Hatfield 

Hathaway 

Rollings 

Humphrey 

Inouye 

Jackson 

Javits 

Kennedy 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntyre 

Metcalf 

Morgan 

Xel^on 

Pack wood 



Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Stafford 

Stevens 

Stevenson 

Stone 

Symington 

Weicker 

Williams 



NAYS— 20 



Allen 
Bartlett 

Byrd, Harry F., Jr. 

Eastland 

Fannin 

Garn 

Golclwater 



McClellan 
Nunn 



Johnston 



Laxalt 
Long 



Helms 
Hrnska 



Sparkinan 
Talmadge 
Thurmond 
Tower 



Scott, William L. 



Young 



NOT VOTING— 28 



Beall 
Bentsen 
Brock 
Buckley 



Durkin 

Fong 

Glenn 

Hansen 

Hart, Philip A. 

Hartke 

Huddleston , 

Mansfield 

McClure 

McGee 



Mondale 
Montoya 
Moss 



Muskie 
Scott, Hugh 



Cannon 

Chiles 

Culver 

Curtis 

Dole 



Stennis 
Taft 



Tunney 



Domenici 



So the motion to lay on the table was agreed to. 

The Presiding Officer. The question recurs on the amendment of 
the Senator from Massachusetts. 

Mr. Thurmond. Mr. President, I believe that we should examine 
how some of these attorney's fees provisions have worked. I do not 
believe we have enough evidence on the effect of attorney fees pro- 
visions in the civil rights area. For this reason, I wish to present to the 
Senate an article from the California Law Review, volume 60, page 
1658, et al., on attorneys' fees in individual and class action antitrust 
litigation. 

This should give us some evidence of the problems encountered in 
the antitrust area, and these problems would probably be similar in 
civil rights cases. 

Mr. President, quoting from this article : 



Section 4 of the Clayton Act provides that the victim of a violation of the anti- 
trust laws may recover from the violator "a reasonable attorney's fee" in ad- 
dition to treble damages. This provision, which finds its roots in a similar section 
of the Sherman Act, exists to encourage private enforcement of the antitrust 
laws. Congress, when enacting the Sherman Act was greatly concerned that the 
antitrust laws would provide remedies only for "[r]ich corporations and rich 
men," leaving "the great mass of the people [who] are not able to employ coun- 
sel" unable to vindicate their rights. Feeling that the primary beneficiaries of a 
civil remedy for antitrust violations should be "the great mass of the people," 
Congress in enacting this section strove to make access to the courts as feasible 
and rewarding as possible. The section also serves to implement the "private 
attorney general" notion by avoiding the necessity of government prosecutions of 
all violations of the antitrust laws. 

Although the "reasonable attorney's fee" provision plays a key role in this 
scheme, Congress has not established criteria for determining a reasonable fee. 
Trial courts, left to their own discretion, have applied many different theories of 
"reasonableness" when making fee determinations. Indeed, it seems there are 
almost as many notions of what is reasonable as there are judges. 

The sheer size of attorney fee awards alone — the most notable being 7.5 
million dollars in Trans World Airlines, Inc. v. Hughes — suggests the necessity 
for close analysis of the rationales employed for determining these awards. 
Additionally, there is no overall consistency in the methods used by courts for 
calculating fees, and the resulting lack of predictability in the determination of 
attorneys' fees only decreases the incentive for private enforcement of the anti- 



California Law Review, Volume 60, Page 1656 Et Al. 



152 



trust laws. For instance, when an attorney contemplates taking a case with a 
relatively small potential recovery, a private contingent fee arrangement between 
the client and his attorney, whereby the attorney is to receive 25 percent or 30 
percent of the recovery, might be an inadequate incentive to take the case. In 
this situation, the court's determination of fees that the defendant must pay in 
addition to treble damages could, as Congress intended, provide the added finan- 
cial incentive necessary to bring the case. But if the attorney thinks the court 
will calculate the fee primarily as a percentage of the small recovery, as is fre- 
quently done, this added incentive may be inadequate. On the other hand, if the 
attorney thinks the fee will be based primarily on the amount of time expended 
by the attorney in the litigation, as is also done, he may he more likely to take 
the case. Inconsistency in judicial fee determinations hinders an attorney's abil- 
ity to make such a judgment, and consequently the purpose for the attorney's 
fee provision may not be realized to the extent possible. 

Part I of this Comment analyzes various factors that courts have considered 
when making fee determinations in antitrust cases brought by individuals. Tt 
then suggests an approach aimed at consistency in the application and emphasis 
of these factors. Part II considers attorneys' fees in antitrust class actions and 
settlements. While the considerations that are discussed here are related only 
tangentially to section 4 determinations, they are nevertheless of great im- 
portance in a discussion of attorneys' fees in antitrust litigation because of the 
important role that attorneys' fees play in antitrust class actions in general, 
and settlements of such actions in particular. 

I 

Attorneys' fees in antitrust cases "brought by individuals 

A. Factors Involved in Determining Reasonable Attorneys 1 Fees 

1. Effect of the Agreement Between the Individual and His Attorney. — The 
great majority of plaintiffs' attorneys in antitrust suits have private fee arrange- 
ments with their clients. Normally a court's award of a reasonable attorney s 
fee, which is paid to plaintiff rather than directly to plaintiff's attorney, is 
merely a factor in these arrangements. With one apparent exception, courts have 
consistently found such private arrangements to be wholly immaterial to the 
judicial determination of attorneys' fees. The one case casting doubt on this 
principle was the district court's decision in Farmington Dowel Products Co. v. 
Forster Manufacturing Co. 

In Farmington, plaintiff agreed to pay his attorney one-third of any recovery, 
plus any amount awarded by the court as a reasonable attorney's fee. Following 
a treble damage award of $327,300, the court determined that $85,000 would be 
a reasonable attorney's fee. It concluded, however, that the private fee arrange- 
ment was "so antipathetic to the objective and spirit of Section 4" that no statu- 
tory fee award should be made. The court reasoned that section 4 provides an 
award of attorney's fees in order to reimburse plaintiff for his costs of suit ; con- 
sequently, the purpose of section 4 is thwarted if an attorney receives the entire 
court award of attorney's fees as well as one-third of the total recovery. The 
court stated further that diverting part of the recovery from the claimant to his 
attorney would frustrate the purpose of the statutory fee awards, that purpose 
being to encourage private treble damage actions by enabling a claimant to keep 
bis recovery intact. The court also found it could not "in good conscience" give 
effect to an agreement under which counsel would receive over $190,000 — more 
than twice what the court had found to be reasonable. 

The First Circuit, finding the district, court's opinion misleading and over- 
broad, modified the decision on appeal. It found that the district court's opinion, 
in effect, erroneously prevented any court award of attorney's fees where, by 
arrangement, the award goes directly to plaintiff's counsel. According to the cir- 
cuit court, the lower court decision implied that no section 4 award (neither 
treble damages nor attorney's fees) could be made when a contingent fee ar- 
rangement existed between plaintiff and his attorney. Such a conclusion, the 
First Circuit reasoned, would truly frustrate the purpose of section 4, for it 
would leave private antitrust enforcement to the independently wealthy. 

The court of appeals stated that although it was proper to inquire into the 
ethical nature of the fee arrangement between plaintiff and his counsel, the dis- 
trict court confused 



153 



[S 16658] 

tlie ethical question with the completely separate issue involved in a section 4 
inquiry. A court's power to prevent a client from paying excessive amounts to an 
attorney should not be confused with a court's role in determining a section 4 
fee that is reasonable for defendant to pay the plaintiff. 

The Code of Professional Responsibility provides ethical standards that gov- 
ern the reasonable amount of compensation an attorney should receive for his 
services. These standards are similar to those that are relevant to section 4, but 
there are significant differences between a determination of reasonableness under 
section 4 and a similar determination under the Code. For purposes of the Code, 
the reasonableness of a fee arrangement should generally be viewed prospectively, 
according to the circumstances in which it was made. Section 4, however, con- 
templates a retrospective estimate of reasonableness. A fee arrangement that is 
contingent upon success is relevant to a determination under the Code, but it is 
not under section 4. Furthermore, a court's role in making section 4 awards is 
quite different from its role in exercising supervisory power over the bar. A sec- 
tion 4 award is very common and has only economic impact, while a court's super- 
visory decision involves an ethical judgment and is reserved for exceptional 
circumstances. A court making a section 4 award should determine whether 
plaintiff is paying his attorney more than is ethically acceptable. However, this 
should in no way affect the court's assessment against defendant, for this is part 
of a defendant's penalty for violating the antitrust laws. The defendant should 
not escape this penalty because, quite fortuitously, an objectionable fee arrange- 
ment exists between plaintiff and his attorney. 

2. Mature of the Case. — The size and difficulty of the litigation has been con- 
sidered by many courts to be an important factor in making section 4 determina- 
tions of attorneys' fees. Factors related to this subject, such as whether plain- 
tiff's counsel had the benefit of a prior judgment or decree in a preceding case, 
the magnitude and complexity of the litigation, and the responsibility undertaken 
by plaintiff's counsel, are frequently considered separately, but similar considera- 
tions apply to each. When the difficulty of an attorney's task is decreased by the 
availability of a favorable prior judgment, or when the scope of a case is limited 
to terms of magnitude or complexity, a commensurate reduction in compensation 
is justified. Courts have not, however, developed a method for effectively measur- 
ing the impact of these factors for purposes of compensating attorneys. It is dif- 
ficult, perhaps impossible, to quantify these factors in terms of dollars and cents. 
While the nature of the case is relevant to an award of attorneys' fees, as an 
isolated variable this factor is too intangible to serve as a basis for computing 
such fees. Whether an attorney's task is considered very difficult or quite simple, 
his fee must be computed after considering other factors. The true importance 
of the nature of the case as a criterion for determining attorney's fees would 
seem realistically to be only as a means for retrospective justification of the fig- 
ure that is finally chosen. 

3. Standing of Counsel at the Bar. — Another factor often given great impor- 
tance in the fixing of attorneys' fees in antitrust cases is the standing of 
counsel at the bar: the attorney's reputation for general professional skill and 
his reputation as a litigator. But although it is a simple matter to state that 
plaintiff's counsel is a highly respected antitrust attorney, or that counsel dis- 
played unusual skill and competence, it is quite difficult to translate this into a 
formula for computing attorneys' fees. 

The importance of adequately compensating excellence seems clear. As an 
independent variable in computing compensation, though, a judicial evaluation of 
the reputation and professional skill of the litigator, like the "nature of the 
case" criterion, is too intangible to be of any real value. This factor likewise 
seems more useful as a basis for justifying a generous fee than as a basis for 
determining such a fee. 

4. Percentage of Recovery. — Over a period of time, courts faced with the task 
of determining reasonable attorneys' fees have developed a percentage theory 
of compensation based upon the award of single damages. Most courts at least 
refer to this theory when making attorneys' fee awards, on the premise that an 
attorney's compensation should bear some relation to the fruits of his labor. 
Examination of the charts in the appendix reveals, however, that the courts have 
applied this theory with little consistency. Furthermore, analysis reveals that the 
percentage theory's value as a determining factor in computing fees is limited at 
best. 



r 



154 



Some courts have used a "fixed percentage theory as the ultimate solution to 
the problem of awarding attorney's fees. For example, in Webster Motor Car Co. 
v. Packard Motor Car Co., the award of attorney's fees was based solely on such 
a theory. The court relied on four cases in which the percentage of single 
damages awarded to the attorneys ranged from 20 to 26.6 and concluded that 
nn award of approximately 23 or 24 percent would be appropriate. In similar 
fashion, the Tenth Circuit adopted a fixed percentage approach in holding, with- 
out explanation, that 15 percent of the amount recovered in a particular case 
would constitute a reasonable attorney's fee. Such hard and fast applications of 
the percentage theory are, however, the exception rather than the norm, and 
for good reason. 

The rigid requirements of the "fixed" percentage theory, with its insensitivity 
to individual differences in antitrust suits, make it inappropriate in the great 
majority of cases. This was recognized in the famous case of Trans World Air- 
lines, Inc. v. Hughes, where the court totally ignored the percentage theory. The 
court reasoned that the theory gives undue emphasis to the size of the recovery. 
Where there are small recoveries, the percentage theory "completely ignores pro- 
fessional skill and the complexity of the work involved." Conversely, where the 
recovery is very high, the theory can result in an excessive award. The weakness 
of the percentage theory can be illustrated in other situations: where plaintiffs, 
in order to expedite the trial, stipulate that they will not claim certain daninges 
to which they might otherwise be entitled, or where the court acknowledges 
that actual damages suffered as a direct result of the antitrust violation would 
have been found to be far greater except for the difficulty of proof, the fixed 
percentage approach would be clearly unfair. 

A more widely used approach rejects the set percentage formula and compares 
a suggested fee award with the damages recovered, to determine if such an 
award would "shock the conscience." The court of appeals in Milwaukee Towne 
Corp. v. Lowe's Inc., found the trial court's fee award, amounting to more than 
50 percent of the single damages, to be "shocking to our sense of reason and 
justice." As will be noted from the charts in the appendix, the court, relying 
principally on the number of hours expended by plaintiff's counsel, reduced the 
fees to the equivalent of 24 percent of the single damages. Similarly, the Eighth 
Circuit held that an attorney's fee amounting to 40 percent of the single damages 
"shock [ed] the conscience," but apparently concluded that an award of 26.6 
percent was not unreasonable. Another court, applying the same logic but 
utilizing a different "conscience," awarded a fee that equaled 78 percent of the 
single damages, thinking it to be both reasonable and consistent with other 
antitrust cases. 

A close examination of cases reveals that the percentage theory appears to 
function properly only when the amount of single damages is in a particular 
range, such that what seems to be a reasonable attorney's fee also happens to 
represent a reasonable percentage of the damages. When the amount of damages 
falls within this range, courts frequently use the percentage theory to compute 
or justify the amount of attorney fees. The range appears to be approximately 
SI. 10.000 to $500,000. When the damages are not within this range, the percentnge 
theory does not "work" and is rarely relied upon. A "reasonable" percentage is 
considered, for purposes of demonstration, to fall somewhere between 15 percent 
and 35 percent. In 34 of the cases surveyed in the appendix, single damages were 
outside the $150,000 to $500,000 range. Of the 34 cases, only four award attorneys' 
fees that fall within the "reasonable" percentage boundaries of 15 percent and 35 
percent. Of the 13 cases with single damnges ranging from $150,000 to $500,000, 
however, eight, involved attorneys' fees that 

(At this point, Mr. Schweiker assumed the chair.) 

fall within these "reasonable" percentage boundaries, and two more are right on 
the borderline. It therefore appears that while the validity of the percentage 
theory depends on the amount of the damages involved, the validity of <-he fee 
docs not depend on the percentage. Thus, despite the substantial amount of court 
time that is spent discussing, analyzing, and applying the percentage theory, its 
significance as a positive tool for actually computing attorneys' fees is limited 
at best. 

Tin's is not to imply that the percentage test serves no purpose. Its proper 
function is found in retroactively justifying the affirmation or rejection of a fee 
award by applying the "shock the conscience" approach. When the attorney fee 
§eent8 unjust on its face, the situation should be examined closely. Even from this 



155 



perspective, however, the value of the percentage theory is limited, for courts' 
"consciences" vary significantly. 

5. Time Expended by the Attorneys. — The number of hours expend; .1 by plain- 
tiff's counsel in the successful litigation is an easily quantifiable sl.uidard for 
determining attorney's fees. Once again, however, courts have attributed various 
degrees of significance to this standard. They have also encountered some diffi- 
culty in calculating the exact number of hours for which plaintiff's attorney 
should be compensated. One court deemed the fixing of fees on an hourly or daily 
basis to be clearly unfair, ". . . just as a surgeon who performs a delicate and 
dangerous operation does not fix his fee on the number of minutes that the opera- 
tion took, but rather on the whole situation." The great majority of courts, 
though, give at least some consideration, but in different degrees, to the number 
of hours spent on the litigation. Some courts have simply multiplied the number 
of hours times a reasonable fee per hour and have used this product as the basis 
for their fee determination. Most courts, however, have merely treated the num- 
ber of hours as one of several factors for consideration. In only 17 of the cases 
surveyed is the actual number of hours expended by the attorneys even stated 
by the courts, and the attorney fee awards made in these cases, when divided by 
the number of hours, range from $4.37 to $128.00 per hour. This tremendous 
variance results not from vast differences of opinion concerning how much attor- 
neys should be paid per hour, but rather from great inconsistency in the im- 
portance attributed to the time factor. 

An additional problem encountered by the courts in considering the time factor 
is the difficulty of calculating the actual compensable attorney time. First, it is 
estab- 

[S 16659] 

lished that time spent by attorneys in seeking to obtain equitable relief such as 
an injunction cannot be considered in determining the attorneys' fees to be 
awarded. Courts have reached this conclusion because the section 4 allowance of 
attorneys' fees is incidential to the statutory right to damages. The courts must 
therefore carefully exclude from consideration all attorney hours spent in seek- 
ing such relief. Those courts that did not attribute major importance to the 
time factor may not have bothered to subtract such hours from the number pre- 
sented to them by the attorneys ; therefore the low fee per hour figures that 
appear on the charts are not necessarily accurate. 

Courts have also held that time spent in presenting damage claims that are 
not proved must be entirely disregarded. In applying this limitation, however, 
courts have been concerned with situations where the recovery is small in rela- 
tion to an alleged large sum. In one instance, where the recovery was quite 
substantial, the court reasoned that the limitation did not apply because plaintiff 
did not fail to prove damages ; the court merely rejected its particular theory 
of measuring damages. 

A final problem with calculating compensable attorney time concerns "over- 
preparation" by the attorney. In lengthy, complex antitrust suits there will at 
times be excessive preparation and duplication of effort. While it may be difficult 
to measure this "wasted" time, courts are reluctant to compensate for such in- 
efficiency. Courts must, however, carefully avoid chilling attempts to develop 
novel theories of law by labeling them wasted effort solely because the theories 
are not accepted by the courts. 

B. Evaluation and Suggestions for Change 

While the majority of courts have given consideration to most of the afore- 
mentioned factors when computing attorneys' fees, the significance attributed to 
those factors that are truly useful in determining fees has varied greatly. Several 
courts have pointed out that these factors are not intended to serve as precise 
yardsticks, but rather as guides. But in using these guides, courts have traveled 
many confusing and conflicting paths. 

Although the legislative mandate to award "a reasonable attorney's fee" offers 
courts little tangible guidance, an examination of the underlying legislative pur- 
pose may be of more assistance. The fee requirement operates to a certain extent 
as a penalty, but this is only incidental to its primary purpose of encouraging 
private antitrust suits. The treble damage provision of the Clayton Act provides 
the economic bite. If the fee awards are too small, the incentive for attorneys to 
undertake similar cases in the future will be reduced. Conversely, if a fee award 
is too large the award exceeds its purpose of encouraging prosecution and im- 



156 



properly enlarge the punitive component of the amount the unsuccessful de- 
fendant must pay. 

This Comment docs not propose that reasonable attorney's fees should be 
computed according to an inflexible formula. Instead, it proposes that all courts 
should subscribe to the same basic approach or method in making their fee 
assessments, thereby achieving some consistency in judicial determinations. 
Merc reference to similar factors by most courts has not solved the problem, 
for consistency cannot be achieved without some common framework to direct 
and continue the use of these factors. The problem, therefore, is to articulate a 
method of computing fees that gives the courts a reasonably certain yardstick 
against which they can measure the relevant factors, thus providing a common 
basis for fulfilling, but not exceeding, the legislative purpose for which the fees 
B re awarded. 

The approach suggested in this Comment is, briefly, that courts should deter- 
mine reasonable attorney's fees by methods similar to those normally used to 
compensate defense attorneys in antitrust cases. 

The most significant factor in making an assessment of fees for defense 
counsel is the number of hours expended by the attorney in the litigation and the 
amount that the attorney charges per hour. An attorney's hourly fee usually 
reflects many factors — such as the attorney's skill, reputation, and experience — 
that courts tend to consider as discrete elements when making section 4 fee 
determinations. A lawyer with a reputation for considerable ability and experi- 
ence commands a higher fee for his time than a lawyer without such a reputation. 
Figuring fees according to time spent on the case also accounts for the com- 
plexity of the litigation; generally, a complex case demands more of a lawyer's 
time than a simple one. 

Of course, the amount the defense attorney in an antitrust case charges for 
his services is usually not determined solely by a mathematical formula. There 
must he flexibility to allow consideration of certain intangible factors such 
as the difficulty and the importance of the case. Certainly the nature of the 
case and the amount involved are relevant, but only as bases for a retrospective 
evaluation of a particular fee determination. The testimony of expert witnesses 
should be encouraged for purposes of aiding the courts in making their assess- 
ments, and care should be taken to avoid compensating inefficiency. 

One strong objection to the "defense attorney" approach to determining fees 
is that if plaintiff wins a large recovery, the attorney will want the court 
awarded fee to be expressed as a percentage of the recovery. Unless this is done, 
It may be argued, attorneys will not be sufficiently compensated in their moments 
of victory to offset the defeats that yielded no compensation because the cases 
were taken on a contingent fee basis. 

While this argument has some merit, two responses may be made. First, 
forcing the defendant to pay this premium is unfair to defendants. When an 
attorney takes a case on a contingent basis, he bears the risk of going with no 
compensation if he should lose. To compensate for taking this risk, attorneys 
usually charge more than they would for cases that are not taken on a contingent 
basis. The greater the risk of loss, the more an attorney will want to receive if 
he should win. Because the unsuccessful defendant in an antitrust case must 
pay, at a minimum, treble damages plus some amount of attorney's fees, to 
require the defendant also to compensate plaintiff's attorney for taking the risk 
that plaintiff might lose seems particularly harsh. Essentially, the more innocent 
the defendant appears to be, the greater is the perceived risk that the plaintiff 
will lose. The defendant should not have to bear a heavier burden for not being 
in flagrant violation of the law. Although a plaintiff's attorney should be compen- j 
sated for having assumed the risk of going without any payment, the source 
of this compensation should be a portion of plaintiff's treble damage recovery 
rather than the statutory award of a reasonable attorney's fee. 

A second reason for not calculating attorneys' fees as a percentage of the 
recovery is that to do would run counter to the legislative purpose underlying j| 
this provision. Conerress, after much debate, decided that there should be no I 
jurisdictional minimum amount before an antitrust suit could be brought in 
a federal district court. If the amount of recovery plays a significant role in the J 
determination of attorneys' fees, however, there will be, in effect, a quasi-judicial 
obstacle to the initiation of antitrust suits with low potential recoveries. While I 
this reasoning offers little consolation to attorneys in cases with large recoveries. I 
the attorney's fee provision was not written specifically with them in mind, j 
Congress realized that it is the smaller plaintiffs, damaged to a lesser degree, 



157 



who need incentive to sue. Where there are large recoveries, a private fee 
arrangement with the client, added to court-awarded attorney's fees, assures 
adequate compensation for the attorney. 

A perplexing situation exists when a low treble damage recovery has been 
produced by attorney time worth several times that amount. In such a case, 
courts must balance the policies in favor of generous attorneys' fees — providing 
"the great mass of the people" with judicial remedies and encouraging prosecu- 
tion by "private attorneys general" — against the need to discourage unwar- 
ranted lawsuits. If the case, while involving relatively low damages, neverthe- 
less represents a significant legal or social step forward, the argument in favor 
of generous attorneys' fees is strong. On the other hand, it may be argued that 
Congress did not intend such an onerous burden to be borne by the defendant 
under the guise of "a reasonable attorney's fee." 

The "defense attorney" approach does not provide the courts with a precise 
tool for assessing attorneys' fees. Indeed, it is not meant to do so. Rather, con- 
sistent use of this approach by the courts should sharpen their inquiry and 
provide a greatly needed yardstick against which the factors relevant to deter- 
mining attorneys' fees can be measured — thereby injecting a common rationale 
into the congressionally required determination of what is "reasonable." 

II 

Attorneys'' fees in antitrust class actions 

Class actions, relative newcomers to antitrust litigation, have become an im- 
portant enforcement device because they allow the aggregation of claims that, 
feaken individually, are too small to prompt litigation. While hailed by some as 
one of history's most socially useful remedies, serious problems — principally the 
potential burden on judicial resources — attend the use of the mass class action. 
Significant steps have been taken to promote the efficient and effective use of 
this device. Nevertheless, there is concern that the true beneficiaries in antitrust 
class actions are the attorneys, not the plaintiff class members, since enormous 
attorneys' fees may swallow much of the class recovery. This section explores 
the possibility of protecting against such an occurrence. It also seeks to resolve 
potential tension between the normal method of compensating attorneys in class 
actions — from the plaintiff's recovery — and the section 4 provision that losing 
defendants in antitrust cases pay attorneys' fees in addition to plaintiff's 
damages. 

A. Attorneys' Fees in Class Actions 

The method of compensating successful attorneys in class actions is called 
the "salvage fund" theory. This theory derives from analogy to maritime salvage 
cases where courts, seeking to encourage future salvage operations, have com- 
pensated successful salvors generously by awarding them a share of the total 
salvage value. Similarly, the attorneys in class actions salvage a fund shared 
by the entire class and from which the litigation expenses, including legal fees, 
are paid. Courts have complete discretion to determine what is fair and reason- 
able compensation, notwithstanding a prior arrangement between the named 
plaintiffs and their attorneys. 

Two basic reasons have been proffered in support of this method of compensa- 
tion. The first treats the named parties as agents or representatives of the class, 
authorizing them to retain an attorney on behalf of, and to be compensated by, 
the class. The second and more compelling rationale is the quasi-contractual 
theory. According to this theory, each member of the benefited class contributes a 
pro rata share of the expenses, other- 

[S 16660] 

wise, unnamed and unknown class members would be unjustly enriched. 

Unlike most antitrust cases brought by individuals, where counsel receive 
compensation from a combination of the recovered damages and the court deter- 
mined reasonable attorneys' fees, attorneys in class suits generally accept 
compensation only from the fund recovered. Therefore courts, when awarding 
attorneys' fees in these two situations, must apply two different standards of 
"reasonableness." A reasonable fee in a class action is determined from the view- 
point of the case when it is first initiated, with the contingency upon success 
warranting higher compensation than where such contingency is irrelevant. This 



15S 



compensation is normally expressed in terms of a percentage of the recovered 
fund. In an antitrust ease, however, where the losing defendant must pay "rea- 
sonable attorney's fees," it seems unfair to assess him a greater amount solely 
because, when the case was first initiated, there was the risk that he might not be 
found guilty. For this reason, it is suggested that the definition of reasonableness 
iu s ctioii 4 determinations should be based on what a client would pay a defense 
attorney in an antitrust case, thus reducing the significance of the actual amount 
involved. 

As a result of the paramount importance attributed to success and the amount 
of tiie fund recovered in compensating attorneys in class actions, attorneys will 
be discouraged from initiating these suits unless they are adequately compensated 
in their moments of victory for assuming the risk of loss. The courts have deter- 
mined that class actions serve an important role in our judicial system, and 
they have therefore been generous in rewarding attorneys. 

B. Antitrust Class Actions 

1. Attorneys'' Fees in Antitrust Class Actions That Proceed to Judgment. — 
From the time rule 23 of the Federal Rules of Civil Procedure was amended in 
19GG until the date of this publication, no antitrust class action has proceeded 
through trial to an actual judicial determination of damages. While to a slight 
degree this may be attributed to the longevity of many antitrust cases, it is 
primarily because most class actions are settled out of court. 

If such a case were to proceed to judgment for the plaintiff class, the court w r ould 
be obligated to devise a new formula for compensating attorneys. Section 4 of the 
Clayton Act specifies that the defendant shall pay a "reasonable attorney's fee." 
Moreover, the salvage fund theory, peculiar to class actions, would also appear 
to provide an appropriate means for compensating the attorneys in antitrust class 
actions. In a great many antitrust suits brought by individual plaintiffs, attorneys 
work on a contingency basis — agreeing to charge nothing if they lose, but request- 
ing more than the court-determined attorney's fee if the suit is successful. The 
amount in excess of the court-determined fee is usually agreed upon prior to the 
litigation and is expressed as a percentage of the verdict. 

Similar compensation is both reasonable and necessary in an antitrust class 
action, but it should not come from either the defendant or the plaintiff class 
alone. The defendant's burden should first be calculated as in any antitrust case, 
with the court evaluating several factors, but placing emphasis upon the amount 
of time expended on the litigation by plaintiff's attorney. However, the problem of 
compensating plaintiff's attorney for taking the case on a contingency basis 
would still remain. The nature of a large class action precludes the attorneys from 
making a fee arrangement with every member of the class prior to the litigation. 
Furthermore, it is unfair to allow a few members of the class, who may have a 
vested interest in a high attorney's fee, to establish a fee arrangement with the 
attorneys binding the rest of the class. 

In order to provide the attorneys with additional compensation, the court 
should make a second calculation, determining the attorney's fee according to 
the salvage fund theory as it is applied in ordinary class actions. The attorney's 
total compensation for litigating the case should equal this latter amount, but 
the class recovery should only be reduced by the difference between this amount 
and the amount that has already been assessed against the defendant under a 
section 4 analysis. This approach would encourage attorneys to participate in 
similar actions in the future, in addition, the mandate of section 4 would be 
satisfied by assessing the defendant a reasonable attorney's fee, thereby protecting 
the individual class members from an unnecessary and unjustifiable decrease in 
their share of the recovery. To relieve the defendant of his statutory burden 
solely because the suit was brought as a class action would in effect give him a 
windfall for injuring a large group of persons to a minor degree rather than 
one person to a large degree. 

A determination of the defendant's share of the fees may be more difficult in a 
class action than in a suit by an individual, since the cumbersome size of the action 
could lead to inefficient use of counsel time which should not, of course, be re- 
warded. Alternative tactics in a lawsuit, however, must never be confused with 
inefficiency. It is some consolation that the potential amount of attorneys' fees 
will normally be so great that both the plaintiffs and the defendant will have a 
strong interest in its determination. Facts, figures, and arguments presented by 
both sides should greatly assist the judge in determining the amount. 



159 



2. Attorneys' Fees in Antitrust Class Action Settlements. — All antitrust class 
actions since 1966 yielding damages to the plaintiffs have ended in settlements, 
and consequently settlements are a major focus of concern. The determination of 
attorneys' fees in such cases is extremely important because the unstructured 
nature of a class action settlement lends itself to the possible abuse of the class' 
interest through excessive attorney compensation. This situation is worsened by 
the fact that class action settlements need not be subjected to judicial scrutiny 
until a tentative settlement is reached. Therefore, the underlying concern in 
examining attorneys' compensation in these settlements must be to ensure that 
the interests of the class predominate over the personal interests of the attorneys 
representing the class. 

The calculation and distribution of damages in a large class action is compli- 
cated, but there are, essentially, three methods for distributing damages to a class. 
Under the first method the defendant pays the class a certain amount of damages 
from which all costs of administration, including attorneys' fees, are paid. This 
practice virtually assures that the attorneys will be well compensated for their 
efforts even though the class may recover a minimal amount. 

A method more favorable to the class provides for the payment of a similar 
amount of damages plus compensation for the attorneys. Damages that are not 
claimed within a certain period revert to the defendant, however. Frequently, most 
of the class members in a large class action do not claim this compensation. The 
deterrent effect of the suit is thus diminished because the defendant is allowed 
to retain some of the fruits of his illegal practices. 

A third method of distributing damages entails distributing all unclaimed 
damages to the class as a whole, rather than returning them to the defendant. The 
payment of attorneys' fees is either deducted from the recovery or paid separately 
by the defendant. This method is known as a fluid class recovery or floating fund 
recovery. In Daar v. Yell&iv Cab Co., for example, the recovered fund was dispersed 
by lowering all cab fares in the City of Los Angeles for a specified period of time. 

Any one of these procedures can yield generous compensation for the attorneys, 
but not all adequately protect the class itself. If the attorneys are offered a 
settlement following the first approach, their compensation will be guaranteed 
(it will come from the class' recovery) : their incentive to reject such a settle- 
ment in hopes of obtaining a fluid class recovery, with costs and attorneys' fees 
paid separately, will consequently be reduced. This potential interference of 
personal interest with the just resolution of a class action makes it necessary 
for the courts to closely scrutinize the role of attorneys' fees in proposed 
settlements. 

The framework for such judicial scrutiny is found in rule 23(c) of the Federal 
Rules of Civil Procedure, which provides that "[a] class action shall not be 
dismissed or compromised without the approval of the court. . . ." This require- 
ment exists to prevent the representative of a class from neglecting the interests 
of the members of the class. In approving the settlement of a class action, the 
judge must ascertain that the settlement as proposed does not promote the 
interests of the attorneys at the expense of the class. The judge abuses his 
discretion if he relies too heavily upon the recommendations of the attorneys. 

This is not meant to imply that proposed settlements necessarily ignore the 
interests of the class. Examples of class-oriented settlements are not difficult 
to find. The settlement with Hilton Hotels in In re Hotel Telephone Charges, for 
example, provided for payment of 3.8 million dollars — the total amount of single 
damages — into a fluid fund; class members were given 00 days to claim their 
share of this fund, and the remainder was distributed indirectly to the class in 
the form of credits on the room bill of each guest at a Hilton Hotel until the 
fund was exhausted. The settlement also provided for payment by defendant of 
the attorneys' fee, over and above the full damages, in a sum not to exceed 30 
percent of the 3.8 million dollars, with the amount to be determined by a district 
judge. It further provided that the defendant pay the full cost of administration 
of the settlement, over and above the damages to the class. Such a settlement 
clearly separates the interests of the attorneys' fees from those of the class, 
and both interests appear to have been fairly treated. 

Nevertheless, the great potential for overlooking class interests in the settle- 
ment procedure warrants continuing concern. The proposed settlement of a class 
action involving Master Charge card holders exemplifies the type of settlement 
that should receive particularly those analysis by a judge prior to approval. 
This case involved alleged violations of the federal truth-in-lending regulations, 



79-586—77 12 



160 



and it was alleged that the total damages to the class were as much as 10 million 
dollars. Under the terms of the settlement, however, no monetary damages were 
to be paid. The case was settled with an agreement that defendants pay only 
court costs and attorneys' fees, in addition to the cost of mailing out explanatory 
material to Master Charge card holders. Not all litigation need result in an 
actual award (or a large award) of monetary damages to the injured parties. 
Where substantia] amounts of damages are alleged, though, an agreement to 
forego any recovery of these damages should be scrutinized closely. The lack of 
an effective deterrent to similar future conduct should be considered, as w r ell 
as the possibility that the attorney for the class may sim- 

[S 16661] 

ply iunore the interests of the class when it becomes evident he will be generously 
compensated. 

One district court judge suggested an appealing approach to this problem after 
he disapproved a proposed settlement that had lumped together the class recov- 
ery with the amount to be paid to the attorneys. The judge suggested that any 
proposed settlements should be presented in terms of the gross consideration to 
the class, with the separate question of attorneys' fees left for judicial determina- 
tion and award. The failure to do this, the judge stated, could lead to a "pre- 
mature or inadequate settlement of a derivative or class action." 

Requiring attorneys' fees to be determined by the court in every settlement of 
a class action would be a significant step toward ensuring the just disposition of 
class actions. The nature of a settlement, of course, precludes using any rigid 
formula in determining attorneys' fees ; also, more court time would be consumed 
in determining attorneys' fees than is required to merely approve a private 
proposal for fees. Nevertheless, the benefits that can result from increased court 
intervention in every class action settlement are well worth the price. 

Conclusion 

The relationship between attorneys' fees and the initiation of antitrust suits 
by individuals and by classes is substantial. For this reason, Congress has pro- 
vided that the violator of antitrust laws must pay "a reasonable attorney's fee" 
to the injured party. Courts, recognizing the importance of class actions, have 
generously compensated attorneys bringing such snits. This Comment has ana- 
lyzed past approaches to compensating attorneys in both types of cases. In addi- 
tion, suggestions are proposed that, if implemented, should promote the pur- 
poses underlying awards of attorneys' fees in antitrust litigation. Specifically, 
it is suggested that statutory fee determinations should place little significance 
on the amount of damages recovered and should look instead to the amount of 
work performed by the attorney. In the class action field, it is suggested that the 
attorneys' fees should always be clearly separated from the recovery to the 
class, in settlements as well as in judgments. 

Mr. President, how much more time do I have? 

The Presiding Officer. The Senator has 4 minutes remaining of 
his hour under the rule. 

Mr. Thurmond. Mr. President, I have presented this article here 
because I think it has great bearing on this matter. 

I ask unanimous consent to have printed in the Record a table show- 
ing attorneys' fees in relation to the amount of single damages and 
to the time spent on the case, published in the California Law Review 
in connection with the foregoing article. 

There being: no objection, the table was ordered to be printed in the 
Record, as follows: 



161 



C >, UJ 

CU 3 »- 



El — m 



S <* E 



oooooo 



oooo 

LT) CO «rr O 
CM CO —< CM 



OO OOOOOOO 



o r-. o o o o 



oooo m in 



o o o o o o m 



to u~> lo cnj Ofsi ocooirt cm co oo 
— ■ d fo r-. -fi o i— < cOr-<r«.ro cm <— < oo 



oo 
o~o 



^.i: ca 

CMC 



■ooino 



oo oor-~o 
oo oo-a-o 

CO lO OlDhq 



OOOO— *00 



tlDOOO) 
N-'tDfOUl 



_ CT> r-H _ 



53^ eX 
i_ o-u-, cd 

CD =<D— • 



CD O U_' O 



OO ~B 
O CM 



O <D 

o E 



■— " — C CO 



e5="S5 

.CO > > >* 

o <d 5 
°.E c cO 

c 52 co co 

cd =J o o a> 
jsrCD _ _ a> 



Q<3 
£E 



Qoo 



CM^H 



>.co 



I CO CD 



e E. 

=3 3 

1*5 

2 > 5 •, o 



.-a E E ir 
<<<<< 



0.0 euiQtt: 

O 1 "" — rO 

"co S § cn * 

F o-a.2,.2 
2 w Jr, ooh 



gin 



CM CO 

-a 

CM CO 



r-cD =CO 

..•PS <D 



C 03 > CO 
— — ' 

c/> i_ O .O 

<"-^_E >£2 



CD 00 



O IT) 
CM , 

- a. 
<2 o. 

C 3 

TO CO 

< U -' 

.in 

> CD 



a. mi 



jr-oj" 

: CD CD — 1 



: ■— cn to . w 
E~co = S 

O^COCT5T3 , W -C 
g2 .CO CM _.oo-K 



"CO 



IS S3 



— CD ^1- Si - ° 2 



— CD ^00 

E.<m~lo 



XT. CM CO — I 



ico.^ 



JeDCOg>Ln 

'cm -a 



"a a?' 

CM.CM.i: . £ 

u. -o.--Kca.rE 

" CO .0} 
CO o 



2.gCO — £ 
1 CD O . CO 'S 
, CD O S3 .CM CO 



2 CM — CO = .CM -sf W Q = -~ 

— o - 



> co cjj — -cT— of ^< 



00 If >'-r-- 



-X) E^f 

03 O CO CD 

= o £ 
S E 
■~ E<«-> 



"CD 

:di «o*f e° c -° §5 |o 



£= o 



; w g ea. co 

O O CO £ 
CD CD O O 



CM 



: <u £ CH j- •— jj: o>^ 



03 o 
E.2 

2 ~ 

co ^ <2 

O. i- o 

a> a> 

CO-O -O 



ec co 



162 



I < 
>< q 

§ 3 

a! E 
o 



S o 



_5 n <D 



o c «J 
E 'S E 

<£ >^ TO 



OOO 

^^0 



cm* 06 
cr> co 



or~oocoo 
cd co ■•r lo 00 ai 



CD O 

to e> 

CM o 

•— < CM 



O O LC5 tr> O O 



CO •-< 



OOO 
LO CD 
CO O 



o 00 1 — O CO 



^5' 



E 2J C/T 

^CO d) 
-J OO (JJ 



-CD C 



S£°° 1- 
cr> co y-^oi 



cr> <u .cm 



o-> co ij 

T3~ CO 



c CT> 00 ^ 



00 

.2S5.S 



5 ■— o 

— CO _w 



CM £ 

b_ — 

CD irt 



n Cl_ CO TO Q.T3 

CO c Z3 ~ "3 



~ 5 



O ^ ro GO i»> 



25 
<3°° 



"5.(5 cm w £Q to 



< S 

. CJ 

> rr 
. c 

Si 



co • 03 _ <o — 

5S? 

S »J > ' o=|.5 

E d 6 13 >- 52 



■■or ^ ^-co c>,^ 

- s f r ?! cxo '» to k2 



'•O 

' c 
=1 

^ o 



<5 £ 

2cU 



t 'OO-O 

5 ;=>.§ 



co ■«= 

06 ; .*** 

-a ■•=<=» 

CM 



■J CD (J 



_j*-;co 

-co 

CT> r-H U_ 



O co 

-5 J 



cm co 



0O^-S5 g CD > 

« joo'°^ y 

z "S S o „ 

g-2-S 

o . ar '— 1 S 



?oo 

00c 



QCOoj; 

— co !Z3 
00 " <u 



■ 1 O 
o r ■-" 2 

^ CM ^ 



OCO ^ 
«3 "=3" 1/3 
!0_CM< 

> o >' 



< 

CO CO 



00 



0- o_ os 00 00 00 



im§ ..!£cm • — I o o c 

<-d 10 xj o o - 

ct> £2 co-> c 3 cm 10 </>.=■ 



T to CO "3 CO 



co co a, 



o o o 

<-> CJ 



163 



[S 16662] 



A^IEXDIMENT NO. 24 9 



Mr. Thurmond. I now call up my amendment Xo. 2409. 
The Presiding Officer. The amendment will be stated. 
The legislative clerk read as follows : 

The Senator from South Carolina (Mr. Thurmond) proposes an amendment 
numbered 2409. 

On page 1, line 10, insert the following : ''If the court in its discretion, finds 
that the action or proceeding is frivolous, the court will order the defendant 
person instituting the action or proceeding to pay a reasonable attorney's fee to 
the other party or parties as part of the costs.". 

Mr. Abourezk. Mr. President. I move that the amendment be laid 
on the table, and I ask for the yeas and nays. 

_ The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to lay on the table the amendment (Xo. 2109) of the Senator from 
South Carolina (Mr. Thurmond). The yeas and nays have been 
ordered, and the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Egbert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Xevada (Mr. Cannon), the Senator from 
Michigan (Mr. Philip A. Hart), the Senator from Indiana (Mr. 
Hartke), the Senator from Kentucky (Mr. Huddleston) , the Senator 
from Louisiana (Mr. Long) . the Senator from TTvoming (Mr. McGee) . 
the Senator from Minnesota (Mr. Mondale). the Senator from Xew 
Mexico (Mr. Montoya). the Senator from Utah (Mr. Moss), the Sen- 
ator from Maine (Mr. Muskie). the Senator from [Mississippi (Mr. 
Stennis). and the Senator from California (Mr. Tiinney) are neces- 
sarily absent. 

I further announce that the Senator from Florida (Mr. Chiles) . the 
Senator from Xew Hampshire (Mr. Durkin), the Senator from Ohio 
(Mr. Glenn), and the Senator from Montana (Mr. Mansfield) are 
absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall). the Senator from Tennessee CMr. Brock), the Senator from 
Xew York (Mr. Buckley), the Senator from Xebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), and the Senator from Wyoming 
(Mr. Hansen) are necessarily absent. 

I further announce that the Senator from Hawaii (Mr. Fong) is 
absent attending the funeral of a friend. 

The result was announced — yeas 51. nays 25. as follows : 



[Rollcall Vote Xo. 630 L<?<r.] 



TEAS— 51 



Abourezk 



Bumpers 
Burdick 



Clark 



Baker 
Bayh 
Biden 
Brooke 



Byrd. Robert C. 

Ca?e 

Church 



Domenici 
Eagleton 



Cranston 
Culver 



164 



YEAS— 51— Continued 



Ford 

Gravel 

GrifflD 

Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Humphrey 

Inouye 

Jackson 

.Tavits 

Johnston 



Kennedy 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntyre 

Metcalf 

Nelson 

Packwood 

Pa s tore 

Pearson 

Pell 



Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stafford 

Stevenson 

Symington 

Taft 

Weicker 

Williams 



Allen 

Bartlett 

Bellmon 

Byrd, Harry F., Jr. 

Eastland 

Fannin 

Garn 

Gold water 
Helms 



NAYS— 25 

Hollings 

Hruska 

Laxalt 

McClellan 

McClure 

Morgan 

Nunn 

Roth 

Scott, William L. 



Sparkman 

Stevens 

Stone 

Talmadge 

Thurmond 

Tower 

Young 



Beall 

Bentsen 

Brock 

Buckley 

Cannon 

Chiles 

Curtis 

Dole 



NOT VOTING— 24 

Durkin Mansfield 

Fong McGee 

Glenn Mondale 

Hansen Montoya 

Hart, Philip A. Moss 

Hartke Muskie 

Huddleston Stennis 

Long Tunney 



So the motion to lay on the table was agreed to. 



Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Helms. Mr. President, shortly, I shall call up amendment Xo. 
2392. I shall not do so at the moment, however. 

First, I point out that this bill, S. 2278, as it now stands, including 
the amendment proposed by the Senator from Massachusetts (Mr. 
Kennedy), requires a Federal court to grant attorneys' fees to the 
prevailing party solely on the basis of its own discretion. My amend- 
ment incorporates an objective standard to aid judges in making their 
derisions. 

While this requirement does set an objective, reviewable standard, it 
is broad enough to be responsive to the many differing situations to 
whir]) the court would have to respond. 

Mr. President, the Senator from North Carolina is convinced that 
there may be a great many Members of this body who are not fully 
aware of the mischief and inequity so clearly possible in the proposed 
legislation. If and when it is enacted, and if and when it is signed 
into law by the President of the United States— and the Senator from 



165 



North Carolina devoutly hopes neither will happen — there will be 
many Senators who will regret their vote in support of this legislation. 

It is labeled "Civil Rights Attorneys' Fees Awards Act." It should 
be labeled "The Lawyers Relief Act of 1976," because it is just another 
Bicentennial bonanza proposed in the Senate to enrich the coffers 
of attorneys in this country. 

The Presiding Officer. The Senator will suspend until the Senate 
is in order. Senators will please be seated and cease conversations, 
so that we can hear the remarks of the distinguished Senator from 
North Carolina. 

Mr. Helms. I thank the Chair. 

This amendment would require that the parties seeking to recover 
legal fees demonstrate to the court, through sufficient evidence, the 
bad faith of the other party in maintaining the suit or in actions which 
preceded the suit. This bad faith standard and established judicial 
meaning and effect should be construed in the light of its use in the 
Federal rules of civil procedures. It has been interpreted by Federal 
courts to include dilatory and objectionable tactics before or during 
trial. It would include actions for which a party has been held in civil 
contempt. It also would include clearly spurious or frivolous defenses 
and vexatious, wanton, or oppressive actions during litigation. 

However, just for example, let us just take one aspect of so-called 
civil rights — to wit, forced busing. 

In one of the counties in my State, a Federal judge issued an order 
which resulted in one schoolbus, with one driver, being scheduled each 
day for the sole purpose of hauling one little boy about 27 miles, if 
my recollection is correct, from his home to a school across the county. 
The only other function of that bus during the da} 7 was to haul that 
little boy back home, the same 27 miles; one bus, one driver, one 
little boy — an appalling waste of time, money, and gasoline. 

Just suppose that, if this legislation should pass the Senate, the 
school board in that county decided to put two little boys on that bus 
and, in some way, deviate from the absurd order handed down by 
that Federal judge. Some fee-seeking lawyer could come along and 
frivolously file suit against the school board, requiring an enormous 
amount of money being spent to defend the school board. In all prob- 
ability, the school board would win the suit. Nonetheless, the school 
board could not recover the cost of defending itself. 

There are some of us in the Senate who feel that when frivolous 
suits are brought and when the defendant prevails, the defendant 
ought to be reimbursed for his expenses. Certainly, he should not be 
victimized by a frivolous suit brought by an irresponsible lawyer. 

Earlier, in other applications, the Senate rejected an amendment, 
part of which would have taken care of this situation. I want to give 
the Senate the chance to address this situation directly and not as 
part of a more complicated proposal. 

AMENDMENT NO. 2392 

Therefore, Mr. President, I call up my amendment No. 2392 and 
ask that it be stated. 



1C6 



[S 16663] 

The Presiding Officer. (Mr. Laxalt). The amendment will be 
slated. 

The assistant legislative clerk read as follows : 

The Senator from North Carolina (Mr. Helms) proposes an amendment to 
amendment Xo. 2347 : On page 1, line 10, strike out the word "costs'." and sub- 
stitute in lieu thereof the following: "costs, but in the event the prevailing party 
i> a defendant and the court finds that the plaintiff acted in bad faith in initiat- 
ing, or contumaciously or vexatiously in prosecuting, any action or proceeding 
to enforce a provision of sections 1977. 1978. 1979. 1980. and 1981 of the Revised 
Statutes, or of title II. VI, or VII of the Civil Rights Act of 1964, or of the Vot- 
ing Rights Act of 1965, then the court shall award to such prevailing party de- 
fendant, other than the United States, a reasonable attorney's fee as part of the 
costs.'." 

Mi. William: L. Scott. Will the Senator yield for a question at this 
point? 
Mr. Helms. Yes. 

Mr. Abourezk. Mr. President, I make the point of order that the 
Senator may not yield for a 

The Presiding Officer. The Senator may yield for a question. 

Mr. Helms. Mr. President. I yield for a question. 

Mr. William L. Scott. Mr. President, I want to inquire of the dis- 
tinguished Senator from Xorth Carolina as to the intention of his 
amendment. I am concerned that this whole bill will encourage litiga- 
tion, but it appears here, from a reading of his amendment, that he 
refers to suits that are brought in bad faith and initiated in bad 
faith. Is it the intention of the amendment of the distinguished Sen- 
ator to reduce the number of suits that are brought just for the pur- 
pose of stirring up litigation and to try to minimize the number of 
lowsuits under this bill? Does the Senator feel that perhaps the bill 
without his amendment would encourage an increased number of law- 
suits, with the thought that the Government would bear the cost in 
many instances? 

We are all concerned about the total cost of Government, and I be- 
lieve we want to eliminate any unnecessary Government expenditures. 
It appears in my mind that the Senator, with his usual concern about 
governmental costs 

Mr. Abourezk. Mr. President. I now make a point of order that 
the Senator is not asking a question but making a speech. I make a 
point of order that it is inviolation of rule XXII. 

The Presiding Officer. The Senator from North Carolina has the 
floor. He may yield only for a question. Sometimes it is confusing as 
to when the question stops and the speech commences. 

Mr. Helms. I understand the Senator's question, and I feel that it is 
appropriate for him to state it fully. 

Mr. William L. Scott. Mr. President. I am trying to find out the 
purpose of the amendment of the distinguished Senator. I am asking 
him the purpose of his amendment. 

Is it intended to save the Government money ? 

Mr. Abofrezk. Mr. President, a point of order. May I be recog- 
nized? 

The Presiding Officer. The Senator from North Carolina still has 
the floor. 

Mr. Helms. I thank the Chair. 



167 



As I say, I understand the Senator's question and he is exactly 
right. The intent of this amendment, in part, is indeed to save the 
taxpayers' money, and to supply an element of equity and fair play. 
It is also intended to prevent further congestion in the Federal courts. 
Throughout this Chamber, we have Senators who are pleading for 
additional Federal judges for their States, and, for additional officers 
of the court, all of which cost money, to take care of the existing over- 
load in our Federal courts. Here we come with a bill that can scarcely 
do anything but add to that congestion, encourage frivolous lawsuits, 
consume more time, and waste more money from the taxpayers' pocket. 

Mr. William L. Scott. Will the Senator yield further for a ques- 
tion? 

Mr. Helms. I yield for a question. 

Mr. William L. Scott. I do not believe the Senator is an attorney, 
but is he aware that in common law, there were crimes of champerty 
and barratry, effort to stir up strife and litigation, and when govern- 
ment pays the cost of lawsuits, might that not contribute to what 
we might call common law barratry, to stirring up strife and litiga- 
tion? Might that not be a factor, in connection with the Senator's 
amendment, to keep things like that from happening? If people had 
to pay their own bill, rather than have the Government pay it for 
them, might that not be a step toward fiscal responsibility ? 

Mr. Helms. The Senator is absolutely correct. 

Mr. President, to avoid even the appearance of being dilatory, I 
reserve the remainder of my time. I ask for the yeas and nays on my 
amendment. 

The Presiding Officer. Is there a sufficient second ? There is not a 
sufficient second. 



Quorum Call 

Mr. Helms. I suggest the absence of a quorum. 

The Presiding Officer. The Clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

Mr. Helms. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded. 

Mr. William L. Scott. I object, Mr. President. 

The Presiding Officer. The objection is heard. 

The assistant legislative clerk resumed the call of the roll. 

Mr. Helms. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded. 

Air. "William L. Scott. I object. Mr. President. 

The Presiding Officer. Objection is heard. 

The assistant legislative clerk resumed and completed the call of the 
roll and the following Senators entered the Chamber and answered to 
their names : 

[Quorum No. 55 Leg.] 

Abourezk Helms Pearson 

Allen Javits Percy 

Burdick Johnston Scott, William L. 

Griffin Laxalt Taft 

Hart, Gary Leahy Tower 

The Presiding Officer (Mr. Laxalt) . A quorum is not present. The 
clerk will call the names of absent Senators. 



1GS 



The assistant legislative clerk resumed the call of the roll. 

Mr, AnouREZK. Mr. President, I move that the Sergeant at Arms be 
instructed to request the attendance of absent Senators, and I ask for 
the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The, Presid] vtq Officer. The question is on agreeing to the motion of 
the Senator from South Dakota. The yeas and nays have been ordered, 
and the clerk will please call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh), the Senator from Texas (Mr. Bcntsen), the Senator from 
Nevada (Mr. Cannon), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Kentucky (Mr. Huddleston) , the Senator from Louisiana (Mr. Long) , 
the Senator from Wyoming (Mr. McGee), the Senator from South 
Dakota (Mr. McGovern) , the Senator from Minnesota (Mr. Mondale) , 
the Senator from New Mexico (Mr. Montoya) , the Senator from Utah 
( Mv. Moss), the Senator from Maine (Mr.'Muskie), the Senator from 
Mississippi (Mr. Stennis), the Senator from Florida (Mr. Stone), the 
Senator from Georgia (Mr. Talmadge) , and the Senator from Califor- 
nia (Mr. Tunney) are necessarily absent. 

I also announce that the Senator from Ohio (Mr. Glenn), the Sena- 
tor from Montana (Mr. Mansfield), the Senator from New Hampshire 
(^ Ir - Durkin) , and tlie Senator from Florida (Mr. Chiles) are absent 
on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), and the Senator from Wyoming (Mr. Hansen) are neces- 
sarily absent. 

I further announce that the Senator from Hawaii (Mr Fong) is 
absent attending the funeral of a friend. 
The result was announced — yeas 66, nays 5, as follows : 



[Rollcall Vote No. 651 Leg.] 



YEAS— 60 



Abou rezk 

Baker 

Bellmon 

Brooke 

Bumpers 

Burdick 

Byrd, Harry F., Jr. 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Culver 

i tomeaici 

Eagteton 

Cast land 

Fa nnin 

Ford 



Garn 

Gravel 

Griffin 

Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Hollings 

Ilruska 

Humphrey 

Inouye 

Jackson 

Javits 

Johnston 

Kennedy 

Laxalt 

Leahy 

Magnuson 



Mathias 

McClellan 

McClure 

Mclntyre 

Mctcalf 

Morgan 

Nelson 

Nunn 

Pack wood 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 



169 



[S 16664] 



►Schweiker 
Scott, Hugh 
Scott, William L. 
Sparkman 
Stafford 



Taft 
Thurmond 



Stevens 
Stevenson 
Symington 



Tower 

Williams 

Young 



XAYS— 5 



Allen 
Bartlett 



Biden 
Helms 



Weicker 



XOT VOTING — 29 



Bayh 
Beall 



Fong 
Glenn 
Goldwater 
Hansen 

Hart, Philip A. 

Hartke 

Huddleston 

Long 

Mansfield 

McGee 



McGovern 



Mondale 
Montoya 
Moss 



Bentsen 
Brock 
Buckley 



Muskie 
Stennis 
Stone 



Cannon 
Chiles 
Curtis 
Dole 
Durkin 



Talmadge 
Tunney 



So the motion was agreed to. 

The Presiding Officer. The Senate is advised that a quorum is 
present. 



The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 
Several Senators addressed the Chair. 

The Presiding Officer. The Senator from North Carolina. 

Mr. Helms. Mr. President, while the Senator from Massachusetts 
(Mr. Kennedy) is in the Chamber, I wonder if I might direct a ques- 
tion to him. 

As author of the provision adding title IX to the bill, does the Sen- 
ator anticipate that it will apply to cases where the question of abortion 
is involved? 

Mr. Kennedy. I believe the answer to that would be "No." 

Air. Helms. In other words, the Senator is saying that even in an 
employment case where a women is dismissed for having an abortion : 
and while there is an allegation of a constitutional right, her suit also 
alleges sex discrimination since only women have abortions. The an- 
swer is u No" ? 

Mr. Kennedy. Title IX cases are brought solely to remedy discrim- 
ination on the basis of sex. 

Mr. Helms. So the Senator does not intend that this provision apply 
in cases where abortion is an issue ? 

Mr. Kennedy. I do not see the point the Senator is making, quite 
frankly. I do not see the relevancy of the argument. The question of 
abortion would not generally arise under title IX, except, perhaps, with 
respect to regulations issued under that statute relating to health insur- 
ance benefits for employees of educational institutions. But there is no 



Civil Rights Attorneys' Fees Awards Act 



170 

requirement for such services if, for example, they would be in conflict 
with basic religious tenets of the educational institution involved. I 
think that with both the legislative history and the application of the 
i itle ? S provisions in terms of the Education Act, it would not be likely 
to reach that particular kind of question. I think it is basically a red 
herring. 

Mr. Helms. Of course, it is not a red herring, I will say to the Sen- 
ator, and I am sorry if he finds it disconcerting. However, inasmuch as 
he says he sees no relevancy in the question, I am glad to have the legis- 
lative history that has been established on this matter. 

Mr. President, I regret that the yeas and nays were requested on ob- 
taining a quorum a few minutes ago. The Senator from North Caro- 
lina wanted to expedite this matter as much as he could. I did not desire 
the yeas and nays being ordered on the question of establishing a quo- 
rum, but since we now have several Senators on the floor, I want to re- 
new my request for the yeas and nays on my amendment. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President. I move to table the Helms amendment 
and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion to 
table. The yeas and nays have been ordered and the clerk will call the 
roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh), the Senator from Texas (Mr. Bentsen), the Senator from Ne- 
vada (Mr. Cannon) , the Senator from Michigan (Mr. Philip A. Hart) , 
the Senator from Indiana (Mr. Hartke), the Senator from Kentucky 
(Mr. Huddleston), the Senator from Louisiana (Mr. Long), the Sen- 
ator from Wyoming (Mr. McGee), the Senator from Minnesota (Mr. 
Mondale), the Senator from New Mexico (Mr. Montoya), the Senator 
from Utah (Mr. Moss), the Senator from Maine (Mr. Muskie), the 
Senator from Mississippi (Mr. Stennis), and the Senator from Cali- 
fornia (Mr. Tunney) are necessarily absent. 

I further announce that the Senator from Florida (Mr. Chiles) , the 
Senator from New Hampshire (Mr. Durkin), the Senator from Ohio 
(Mr. Glenn), and the Senator from Montana (Mr. Mansfield) are ab- 
sent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), and the Senator from Wyoming (Mr. Hansen) are neces- 
sarily absent. 

I further announce that the Senator from Hawaii (Mr. Fong) is 
absent to attend the funeral of a friend. 

The result was announced — yeas 55, nays 19, as follows : 



171 



[Rollcall Vote No. 652 Leg.] 



Abourezk 

Baker 

Bellmon 

Biden 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Culver 

Domenici 

Eagleton 

Ford 

Gravel 

Griffin 

Hart, Gary 



Allen 
Bartlett 

Byrd, Harry F., Jr. 

Eastland 

Fannin 

Garn 

Helms 



Bayh 

Beall 

Bentsen 

Brock 

Buckley 

Cannon 

Chiles 

Curtis 

Dole 



YEAS— 55 

Haskell 

Hatfield 

Hathaway 

Hollings 

Humphrey 

Inouye 

Jackson 

Javits 

Johnson 

Kennedy 

Leahy 

Magnuson 

Mathias 

McGovern 

Mclntyre 

Metcalf 

Nelson 

Packwood 

Pastore 

NAYS— 19 

Hruska 

Laxalt 

McClellan 

McClure 

Morgan 

Nunn 

Scott, William L. 

NOT VOTING— 26 

Durkin 

Fong 

Glenn 

Goldwater 

Hansen 

Hart, Philip A. 
Hartke 
Huddleston 
Long 



Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Roth 

Schweiker 

Scott, Hugh 

Stafford 

Stevens 

Stevenson 

Stone 

Symington 

Taft 

Weicker 

Williams 



Sparkman 

Talmadge 

Thurmond 

Tower 

Young 



Mansfield 

McGee 

Mondale 

Montoya 

Moss 

Muskie 

Stennis 

Tunney 



So the motion to lay on the table was agreed to. 

The Presiding Officer. The Senator from Alabama is recognized. 

Mr. Allen. Mr. President, in a moment I shall call up an amend- 
ment. First, I wish to comment on the legislative and parliamentary 
situation in which we find ourselves. 

We started deliberating on this bill, I believe, last Tuesday. At that 
time I expressed an opinion that this bill should have a low priority 
with the many important bills that are on the calendar, in conference, 
and in fact have been agreed on in conference. Notwithstanding that, 
the motion was made to proceed to consideration of this bill, which 
is a Senate bill and which ordinarily one would think would have very 
little chance of passing at this late stage of the proceedings with sine 
die adjournment anticipated on October 1 or October 2, Friday or 
Saturday, of this week. 

I still fail to see the great urgency of this bill. "Why should this bill 
have been placed at the top of all bills pending or near action in the 
Senate or near completion of action by Congress ? 



It is pa ul to be a civil rights attorneys' awards bill, and I guess that i 
is what it is. But it is difinitely not a civil rights bill because it proa 
tects no civil right and adds no civil right. But what it does do is to I 
assure attorneys of the collection of fees. So instead of being a civil | 
rights bill, it is a lawyers' bill, pure and simple. 

It came about, I assume, or it is stated in the report, as a result of I 
the AJyeska Pipeline Service Co. case in 1975 which held contrary to 
holdings of lower courts that unless Congress had provided for the 
pa pment of attorneys' fees in civil rights actions the courts were pow- 
erless to order such fees. So they rush in right here at the closing days 
of Congress to provide and to guarantee these attorneys' fees. 

Mr. President, this bill had its origin back before the Alyeska case, 
and it was introduced in 1975, according to the committee report, and 
was approved by the Subcommittee of the Judiciary Committee. It: 
was never approved by the full committee. In 1975, then, I believe, it 
was added as an amendment to the bill S. 1279 extending the Voting 
Rights Act of 1965, but that bill never came up in the Senate. It was 
never brought up in the Senate because they decided to go with the 
House bill and choke off all amendments here in the Senate. As I 

[S 16665] 

recall, the only amendment that they agreed to was an amendment by 
the distinguished assistant majority leader (Mr. Robert C. Byrd), 
which cut the added 10-year penalty period down to 7 years. That was 
passed. I guess the only man in the Senate who could have gotten that 
amendment adopted was the distinguished assistant majority leader 
(Mr. Robert C. Byrd), and the reason he was able to do it was be- 
cause he had rammed the bill through to near passage on a 10-year 
basis and then lie offered a 7-year amendment which was reluctantly 
accepted by those supporting that bill. 

So why the haste on this bill in the closing days of this Senate? We 
have been on it now for approximately 1 week, and I do not attach all 
of that importance to the bill. As a matter of fact, we would not have 
had as much discussion on it as we have had if it had not been for the 
f a ct that certain shortcuts were taken with respect to seeking to ram the 
bill through. 

We have many bills that need consideration. I have been told that 
these bills are regarded as being "must" bills: the omnibus rivers and 
harbors bill, unemployment tax, supplemental appropriations, con- 
tinuing resolution, foreign aid conference, the toxic substances con- 
ference, the education amendments conference, the revenue sharing 
conference, the mine safety bill, the black lung bill, the small business 
investment bill. The export bill is regarded as being very important, 
and many other bills are being held up because it is insisted that this 
bill must pass. 

Many House bills need attention, and one would think that a Sen- 
ate bill would have very little chance of passage if thrown into the 
big pot of bills in the House. 

So, sometime this afternoon, before we get too much farther alone:. I 
plan to make a motion to lay this bill on "the table. I am hopeful that 



173 



those who do have bills that need passing w jH SGe fit to say that this 
bill is not as important as many other bills. 

Mr. President, the committees have been turning out bills, but none 
of them gets on the calendar because of the pendency of this bill. I 
understand that the clerk's desk is stacked high with bills agreed upon 
in committee, reported by the committee, but they cannot go on the 
calendar because of the pendency of this bill. It would take unanimous 
consent to have those bills reported by the committee. They are re- 
ported; they are at the desk; but they have not been reported in a 
final sense, because we have not had any routine morning business for 
several days. We have not had routine morning business because of this 
clotured bill, which is of minor importance. It is of minor importance 
to me. I have no particular objection to this bill, except that it would 
stir up litigation that ordinarily would not be brought, and it provides 
subsidies for lawyers in filing these suits. 

We have been very generous in the Senate and in Congress with law- 
yers during this session. That was the main thrust of the antitrust 
bill — getting lawyers' fees on a contingent fee basis. That was the 
main thrust of that bill. The matter of lawyers' fees is what defeated 
the no-fault insurance bill. We also had a bill, S. 2715, by Mr. Kennedy, 
that provided for paying lawyers for bringing proceedings before the 
A T arious agencies. 

So it seems that the thrust of much of our legislation is to see that 
attorneys receive fees. Sometimes they have been in the hundreds of 
thousands of dollars. I do not state that that would come under the 
present bill, but the very fact of allowing the stirring up of litigation 
through the payment of attorneys' fees is something that I do not be- 
lieve we should do. 

Attorneys' fees are provided for under many of the civil rights stat- 
utes. In fact, an unusual sentence in the committee report says, on 
page 3, the last two lines : 

Since 1964. every major civil rights law passed by the Congress has included or 
has been amended to include one or more fee provisions. 

If we already have one or more fee provisions in all civil rights laws, 
why do they need still another ? 

I cannot rank this bill in importance anywhere close to at least 25 or 
30 bills pending before the Senate and pending before Congress. Yet, 
this bill was taken off the calendar. It has been here since late June, 
if I am not mistaken. It could have been July. 
The bill was first introduced in 1973. It had some action in the com- 
, mittee but was not reported. All of a sudden, in the last 2 weeks of this 
| session, they suddenly seized upon it, to ram it through in the closing 
days of the session. I say that the manner in which this bill has been 
1 handled, the insistence on its passage, already has doomed to defeat in 
' I Congress many worthwhile bills. 

I say parenthetically, however, that it may have doomed many bills 
' that are not worthwhile. So it has worked both ways, I must say. How- 
ever, I believe that it would have been better if we had not entered upon 
r | the consideration of this bill. 

I One would think that such a popular bill, taking care of attorneys, 
and labeled a civil rights bill, would have swept through the Senate on 



174 



cloture. It received 6$ votes. I daresay that if we had another cloture 
rote, they would not receive 63 in favor of it; because it is quite obvious 
t iiat furt her Insistence on the passage of this bill is endangering legis- 
lat ion thai is good in some cases, legislation that is bad in other cases. 

AMENDMENT NO. 23 91 

So, Mr. President, I am going to reserve the remainder of my time 
and call up amendment No. '21)91 and ask that it be stated. 
The Presiding Officer. The amendment will be stated. 
The second assistant legislative clerk read as follows : 

At the end of the hill add the following new section: 

Sec. — . Section 4(a) of Puhlic Law 92-261 is amended by striking out the 
words "'or any other equitahle relief as the court deems appropriate," and sub- 
si it ute in lieu thereof the following: "or any other equitable relief as the court 
deems appropriate, except that in no event shall such relief include the award of 

an attorney's fee.". 

Mr. Allen. I ask for the yeas and nays, Mr. President. 
The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President, I move to table the amendment, and I 
ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from South Dakota to table the amendment of the Sen- 
ator from Alabama. On this question the yeas and nays have been 
ordered, and the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana (Mr. 
Bayh), the Senator from Texas (Mr. Bentsen), the Senator from 
Nevada (Mr. Cannon), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Kentucky (Mr. Huddleston), the Senator from Wyoming (Mr. Mc- 
Gee) , the Senator from Minnesota (Mr. Mondale) , the Senator from 
New Mexico (Mr. Montoya), the Senator from Utah (Mr. Moss), the 
Senator from Maine (Mr. Muskie) , the Senator from Mississippi (Mr. 
Stennis), and the Senator from California (Mr. Tunney) are neces- 
sarily absent. 

I further announce that the Senator from Florida (Mr. Chiles), the 
Senator from Ohio (Mr. Glenn), the Senator from Montana (Mr. 
Mansfield), and the Senator from South Dakota (Mr. McGovern) are 
absent on official business. 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Bcall), the Senator from Tennessee (Mr. Brock), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater). and the Senator from Wyoming (Mr. Hansen) are nec- 
essarily absent. 

I further announce that the Senator from Hawaii (Mr. Fong) is 
aal attending the funeral of a friend. 



175 



The result was announced— yeas 55, nays 20, as follows 

[Rollcall Vote No. 653 Leg.] 



Abourezk 

Baker 

Bartlett 

Bellmon 

Biden 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 

Gravel 

Griffin 



Allen 

Byrd, Harry F„ Jr. 

Eastland 

Fannin 

Ford 

Garn 

Helms 



Bayh 

Beall 

Bentsen 

Brock 

Buckley 

Gannon 

Chiles 

Curtis 

Dole 



YEAS— 55 



Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Hollings 

Humphrey 

Inouye 

Jackson 

Javits 

Kennedy 

Leahy 

Magnuson 

Mathias 

Mclntyre 

Metcalf 

Morgan 

Nelson 

Nunn 

Packwood 



[S 16666] 
NAYS— 20 

Hruska 
Johnston 
Laxalt 
Long 

McClellan 

McClure 

Roth 

NOT VOTING— 25 

Fong 
Glenn 
Goldwater 
Hansen 

Hart, Philip A. 

Hartke 

Huddleston 

Mansfield 

McGee 



Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stafford 

Stevens 

Stevenson 

Stone 

Symington 

Taft 

Weicker 

Williams 



Scott, William L. 

Sparkman 

Talmadge 

Thurmond 

Tower 

Young 



Mc Govern 

Mondale 

Montoya 



Muskie 
Stennis 
Tunney 



So the motion to lay on the table was agreed to. 



[S 16673] 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Eights Attorneys' Fees Awards Act of 1975. 

Mr. Abourezk. Mr. President, I ask unanimous consent that Kevin 
Murray, of my staff, Mark Koven, Steven Gordon, and Jane Yanulis, 
have the privilege of the floor during the debate and voting on the 
pending matter. 

79-586—77 13 



176 



The Presiding Officer (Mr. Pell). Without objection, it is so 

ordered. 



[122 Cong. Rec. S 16876 (daily ed. Sept. 28, 1976)] 
Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Robert C. Byrd. Mr. President, what is the pending business 
before the Senate ? 

The Presiding Officer. The bill will be stated by title. 

The legislative clerk read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of 
1975. 

AMENDMENT NO. 2 3 85 

Mr. Allen. Mr. President, I call up my amendment No. 2385. 
The Presiding Officer. The amendment will be stated. 
The legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) proposes amendment numbered 2386 : 
On page 1, line 5, after the word "1979," strike out the words "1980, and 1981" 
and substitute in lieu thereof the following : "and 1980". 

Mr. Allen. Mr. President, I ask for the yeas and nays. 
_ The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President, I move to table the amendment, and 
I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to table. On this question the yeas and nays have been ordered, and the 
clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Delaware (Mr. Biden), the Senator from 
Virginia (Mr. Harry F. Byrd, Jr.), the Senator from Nevada (Mr. 
Cannon), the Senator from Florida (Mr. Chiles), the Senator from 
Alaska (Mr. Gravel), the Senator from Michigan (Mr. Philip A. 
Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale), 
the Senator from New Mexico (Mr. Montoya), the Senator from 
Rhode Island (Mr. Pastore), and the Senator from California (Mr. 
Tunney) are necessarily absent. 

I further announce "that the Senator from. Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Rhode Island (Mr. Pastore) would vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 

P.1 TT— »?3-«Y 



177 



Beall), the Senator from New York (Mr. Buckley), the Senator from 
Nebraska (Mr. Curtis), 

[S 16877] 

the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), the Senator from Wyoming (Mr. Hansen), the Senator 
from Nebraska (Mr. Hruska), and the Senator from New York (Mr. 
Javits) are necessarily absent. 

The result was announced — yeas 59, nays 17, as follows : 

[Rollcall Vote No. 661 Leg.] 
YEAS— 59 



Abourezk 


Hart, Gary 


Nelson 


Baker 




Nunn 


Bayh 


Xld. LutilU. 


JT CH_li.W UUtl 


Bellmon 


XI a. Llld W <X Jf 


X V3cX 1 OUii 


Brock 


Hrkllintre 


Pell 


x>rooKe 


TTnrlfllpstfui 

JLJL LIUUiCO lull 


Percy 


Bumpers 


Humphrey 


Proxmire 


Burdick 


Inouye 


Randolph 


rsyra, JtvOuerc \j. 






Case 


Johnston 


Roth 


Church 


Kennedy 


Schweiker 


Clark 


Leahy 


Scott, Hugh 


Cranston 


Long 


Stafford 


Culver 


Magnuson 


Stevens 


Domenici 


Mathias 


Stevenson 


Durkin 


Mclntyre 


Symington 


Eagleton 


Metcalf 


Taft 


Fong 


Morgan 


Weicker 


Ford 


Moss 


Williams 


Griffin 


Muskie 






NAYS— 17 




Allen 


Laxalt 


Stone 


Bartlett 


McClellan 


Talmadge 


Eastland 


McClure 


Thurmond 


Fannin 


Scott, William L. 


Tower 


Gam 


Sparkman 


Young 


Helms 


Stennis 






NOT VOTING— 24 





Beall Dole Javits 

Bentsen Glenn Mansfield 

Biden Goldwater McGee 

Buckley Gravel McGovern 

Byrd, Harry F., Jr. Hansen Mondale 

Cannon Hart, Philip A. Montoya 

Chiles Hartke Pastore 

Curtis Hruska Tunney 

So the motion to lay on the table was agreed to. 

[S 168791 

Civil Eights Attorneys' Fees Awards Act 

Mr. William L. Scott. Mr. President, what is the pending business \ 
The Presiding Officer. The Senate will now resume the considera- 
tion of S. 2278. which the clerk will state. 



178 



The assistant legislative clerk read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorneys' Fees Awards Act of 1975. | 

The Presiding Officer. The Senator from Virginia is recognized. c 

Mr. Haskell. Mr. President, will the Senator from Virginia yield, , 
without losing his right to the floor? 

Mr. William L. Scott. Mr. President, I ask unanimous consent that 
I may yield without losing my right to the floor, and that my subse- 
quent remarks after yielding not be considered a second speech. 

The Presiding Officer. Is there objection? 

Mr. Abourezk. I object. 

The Presiding Officer. Objection is heard. 

Mr. William L. Scott. Mr. President, as I understand, the matter 
before us is the Civil Rights Attorneys' Fees Awards Act. 

On looking at the purpose section of the report of the committee, I 
find that it states that the purpose is to give the Federal courts discre- 
tion to award attorneys' fees to prevailing parties in suits brought to 
enforce the Civil Rights Acts which Congress has passed since 1866. 

Mr. President, I believe that this bill would entourage more law- 
suits, and certainly that is not anything that the Federal courts need. 
They have more lawsuits now than they appear to be able to handle. 

In a statement made by the Senator from Oklahoma (Mr. Bellmon) 
some months ago — in fact, it is dated May 25, 1976 — on another bill, 
Senator Bellmon spoke of the crisis in our Federal courts. 

Mr. Haskell. Mr. President. I wonder if the Senator from Virginia 
would yield so that I may make a unanimous-consent request. 

Mr. William L. Scott. Mr. President, I have no objection to yield- 
ing by unanimous consent, provided I do not lose any rights that I 
have at this time to the floor or to subsequent speeches. 

Mr. Abourezk. Mr. President, if the request is that the Senator from 
Virginia be allowed to be recognized following Senator Haskell's pres- ! 
entation, I have no objection to that, but I would object to a transfer- 
ence of time during cloture from one Senator to another. 

Mr. William L. Scott. Mr. President, I do not want to yield on my [ 
time. 

Mr. Abourezk. No, that is not the case. 

The Presiding Officer. Is there objection? Without objection, the 
Senator from Colorado is recognized. 

Mr. Haskell. I thank the Senator from Virginia and the Senator 
from South Dakota. 

[S 16880] 

Mr. Thurmond addressed the Chair. 

The Presiding Officer. The Senator from Virginia, by previous 
order, retains his right to the floor. 

Mr. Talmadge. Mr. President, will the Senator from Virginia yield 
to me for 30 seconds ? 

Mr. William L. Scott. Mr. President, I have yielded on several 
oc i -ions, and I have been here for about an hour. I just want to talk 
for about 5 minutes, and then I will yield. I am going to ask for a 
record vote, and then I will yield the floor. So I ask the indulgence of 
nay colleagues, because I have been indulging other Senators. 



179 



Several Senators are asking me to yield for 10 seconds or something 
like that. We know what has happened in the past ; so I am going to 
decline to yield to any of my friends, even though, under usual cir- 
cumstances, I would yield. 

The Presiding Officer. Will the Senator suspend momentarily ? 
The Chair would like to obtain order in the Senate. 

The Senator from Virginia is entitled to be heard, and the Senate 
will come to order. Will the staff members take their seats? Conversa- 
tions will cease. 

Mr. William L. Scott. Mr. President, I am going to repeat the few 
seconds of remarks that I made before we had this intervening 
business. 

We have before us the Civil Rights Attorneys' Fees Awards Act. In 
the "Purpose" portion of the committee report, it states that the pur- 
pose of this bill is to give Federal courts discretion to award attorney's 
fees to prevailing parties in suits brought to enforce civil rights acts 
which Congress has passed since 1866. 

Mr. President, I believe this will encourage further litigation. We 
know that in all our Federal courts we have a backlog of cases. We 
have a bill, which the Senate has passed, which would add upward of 
50 new Federal district judges. We have passed another bill that would 
add circuit court judges. The courts keep asking for judges. I wonder 
whether measures such as this, by which we are going to pay attorneys 7 
fees — or may pay them, in the discretion of the court — will encourage 
further litigation. 

In one instance, we are not able to send to the President bills to 
provide additional judges. Yet, we are considering measures that will 
encourage more lawsuits and will cause the court dockets to become 
still further behind. 

Mr. President, some months ago, on May 25. 1976, the Senator from 
Oklahoma (Mr. Bellmon), in comment on the floor of the Senate in 
connection with another bill, said this : 

It comes as no surprise to learn that our courts are in crisis. Each year the 
caseload cast upon overworked Federal judges increases significantly. Each year 
the Chief Justice plaintively calls for restraint and circumspection by Congress 
in the creation of a whole new category of cases to be dumped into the Federal 
court. Each year Congress nevertheless adds more and more burdens to the 
Federal courts. 

As a result, the Federal judiciary, which was designed to be the great bulwark 
of constitutional interpretation and implementation, is being steadily transformed 
into an institution distracted by petty claims, and overwhelmed by massive and 
incomprehensible economic confrontation. 

Since 1960. according to Senator Bellmon, the number of civil cases 
in Federal district court has increased by more than 100 percent, to 
a total of more than 117,000 cases in 1975 alone. 

I repeat : During the years since 1960, the number of civil cases com- 
| menced in Federal district courts increased more than 100 percent, 
i and in the year 1975 reached the level of 117.320 cases. From 1960 to 
I 1975. in the district court civil caseload. Federal question cases grew 
I from 1.175 to 52,688. This is a 400-percent increase. 

Mr. President, Senator Bellmon, in his remarks, does list instance 
| after instance in which Congress has increased the workload in the 
I Federal court. I believe this bill might well be considered a minor bill, 
I giving the Federal judges discretion in awarding attorneys' fees in 



180 



civil rights cases that arise under acts passed by Congress in the past 
cent ury since 1866, in the past 110 years. Yet I believe that the fact that 
attorneys' fees would be awarded would add to the caseload. I feel this 
is a bad bill, and I feel that the bill should be defeated. 

Mr. President, I shall not infringe further on the time of the Senate 
to discuss this further. I call up my amendment. 

Mr. Long. Mr. President, will the Senator yield for a question? 

Mr. William L. Scott. I yield for a question. I am glad to yield to 
the distinguished Senator for a question. 

Mr. Long. Let me ask the Senator this : Does not this fact that, if the 
plaintiff wins the lawsuit, the judge can make an award to the attor- 
ney, lead to the possibility — at least to some degree — of the type of 
human equation where the judge sees a lawyer frequently in court; 
the lawyer pleads lots of these cases and pleads them for clients who, 
for the most part, do not feel a disposition to pay, hoping that he will 
make enough money on those who win to pay the cost of the others. 
If the judge sort of likes the lawyer and feels kindly toward him, 
would it not be, sort of, a tendency of the judge to find for the plain- 
tiff so he could award the lawyer a fee to help the lawyer along when 
he feels kindly toward him — knowing that he is not supposed to decide 
that way? Do not those kinds of things get in the back of a judge's 
mind sometimes, that it would be nice to help that young fellow win 
a case so he could award him a f ee ? 

Mr. William L. Scott. Mr. President, in response to the question of 
the Senator from Louisiana, I only have a little more than 2 years left 
in my term. It may be that I shall return to the practice of law, so I do 
not want to say 

[S 16881] 

anything that might be critical of some of the judges that I might be 
practicing before. 

The distinguished Senator has, in effect, asked a question, but ex- 
pressed an opinion at the same time that he has asked a question. I am 
not going to disagree with my distinguished colleague from Louisiana, 
but I would prefer, at this stage, not to be critical of the judges on our 
Federal bench, especially those judges that sit on the Federal bench in 
the State of Virginia or the Fourth Circuit Court of Appeals. 

Mr. Long. I understand the Senator's position, but does the Senator 
not recognize the potential of the human equation, where the judfre has 
these two lawyers, both of them being nice fellows. He knows the fel- 
low representing the defendant is going to get paid anywny, and he 
knows that the other fellow, representing the plaintiff, is going to have 
to win the lawsuit in order to get paid; otherwise, the judge could not 
make an award to him. Might that not be another nail in the coffin of a 
case like this? 

Mr. William L. Scott. The report accompanying the act states that 
a judge, in his discretion, may allow T the prevailing party, other than 
the United States, a reasonable attorney's fee as part of the cost. 

T think that the question that the distinguished Senator has posed is 
nnswered, to a large extent, in the bill itself, and T appreciate the distin- 
guished Senator's bringing this matter up. 



181 



AMENDMENT NO. 2 3 90 

Mr. William L. Scott. Mr. President, I call up my amendment 
No. 2390. 

The Presiding Officer. The amendment will be stated. 
The legislative clerk proceeded to read the amendment. 
Mr. William L. Scott. Mr. President, I ask unanimous consent that 
further reading of the amendment be dispensed with. 

The Presiding Officer. Without objection, it is so ordered. 
The amendment is as follows : 

On page 1, line 9, after "costs" insert the following : except that notwith- 
standing the provisions of section 204(b) or 706 (k) of the Civil Rights Act of 1964 
or section 14(e) of the Voting Rights Act of 1965, no court of the United States 
shall require any officer of the United States or any State or political subdivision 
of any State or any public official of any State to pay a prevailing party an 
attorney's fee as part of the costs of any action brought under title II or VII of 
the Civil Rights Act of 1964 or under the Voting Rights Act of 1965.". 

Mr. William L. Scott. Mr. President, I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Abotjrezk. Mr. President, I move to lay the amendment on the 
table. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
of the Senator from South Dakota. The yeas and nays have been 
ordered. The clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh) , the Senator from Texas (Mr. Bentsen) , the Senator from 
Delaware (Mr. Biden), the Senator from Nevada (Mr. Cannon), the 
Senator from Florida (Mr. Chiles), the Senator from Mississippi 
(Mr. Eastland), the Senator from Michigan (Mr. Philip A. Hart), 
the Senator from Indiana (Mr. Hartke), the Senator from Wyoming 
(Mr. McGee). the Senator from Minnesota (Mr. Mondale), the 
Senator from New Mexico (Mr. Montoya) , the Senator from Wiscon- 
sin (Mr. Nelson), the Senator from Rhode Island (Mr. Pastore), the 
Senator from Mississippi (Mr. Stennis), the Senator from California 
(Mr. Tunney), and the Senator from Virginia (Mr. Harry F. Byrd, 
J r. ) are necessarily absent. 

I also announce that the Senator from Ohio (Mr. Glenn), the Sen- 
ator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Rhode Island (Mr. Pastore) would vote '"yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Oklahoma (Mr. Bellmon), the Senator from 
New York (Mr. Buckley), the Senator from Nebraska (Mr. Curtis), 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), the Senator from Wyoming (Mr. Hansen), the Senator 
from Nebraska (Mr. Hruska), the Senator from New York (Mr. 
Javits), and the Senator from Delaware (Mr. Roth) are necessarily 
absent. 



182 



The result was announced — yeas 56, nays 15, as follows : 

[Rollcall Vote No. 664 Leg.] 
YEAS— 56 



Abourezk 


Hart, Gary 


Packwood 


Baker 


Haskell 


Pearson 


Brock 


Hatfield 


Pell 


Brooke 


Hathaway 


Percy 


Bumpers 


Hollings 


Proxmire 


Bur dick 


Huddleston 


Randolph 


Byrd, Robert C. 


Humphrey 


Ribicoff 


Case 


Inouye 


Schweiker 


Church 


Jackson 


Scott, Hugh 


Clark 


Johnston 


Stafford 


Cranston 


TTpnnpd v 


Stevens 


Culver 


Leahy 


Stevenson 


Domenici 


Magnuson 


Stone 


Durkin 


Mathias 


Symington 


Eagleton 


Mclntyre 


Taft 


Fong 


Metcalf 


Talmadge 




Moss 


» V ciUHcl 


Gravel 


Muskie 


Williams 


f~\ • JSC* 

Crrimn 


Nunn 






NAYS — 15 




Allen 


Laxalt 


Scott, Willia 


Bartlett 


Long 


Sparkman 


Fannin 


McClellan 


Thurmond 


Garn 


McClure 


Tower 


Helms 


Morgan 


Young 




NOT VOTING — 29 




Bavh 


Dole 


McGee 


Beall 


Eastland 


McGovern 


Bellmon 


Glenn 


Mondale 


Bentsen 


Goldwater 


Montoya 


Biden 


Hansen 


Nelson 


Buckley 


Hart, Philip A. 


Pastore 


Byrd, Harry F., Jr. 


Hartke 


Roth 


Cannon 


Hruska 


Stennis 


Chiles 


Javits 


Tunney 


Curtis 


Mansfield 





So the motion to lay on the table was agreed to. 

Mr. Helms. Mr. President, I suggest the absence of a quorum. 

Mr = Abourezk. Mr. President, I make a point of order that a quorum 

was present on that vote and there lias been no business transacted 
since then. 

The Presiding Officer. The Senator's point is well taken. 
Mr. Allen. What was the Chair's rule? 

The Presiding Officer. The Chair ruled that the Senator's point 
was well taken, that the suggestion of the absence of a quorum is not 
in order when a quorum has just been established by a record vote 
without any intervening business. 

Mr. Abourezk. I move the amendment, the pending amendment, 
Mr. President. 

Mr. Long addressed the Chair. 

The Presiding Officer. The Senator from Louisiana. 
Mr. Long. Mr. President, I find difficulty believing there is a quorum 
present. I just look about and I observe 14 Senators, the Presiding 



183 



Officer makes 15. I, for the life of me, cannot believe 15 Senators is a 
majority of 100. 
I appeal the ruling of the Chair. 

Mr. Robert C. Byrd. Mr. President, I hope the Senator will with- 
hold that. 

I think the Chair is right in this instance, in my opinion only, I 
may be wrong, but I hope the Senator will withhold. 
Mr. Long addressed the Chair. 

Mr. Robert C. Byrd. Will the Senator withhold for a moment ? 
Mr. Long. All right. 

[S 16882] 

Civil Rights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

AMENDMENT NO. 239 3 

Mr. Helms. Mr. President, momentarily I shall call up my amend- 
ment at the desk No. 2393. But before I do that, the Senator from 
North Carolina reminds the Senate that all over this country the 
Federal courts are in a state of crisis congestion. Scarcely a Senator 
has not been heard this year on the subject of "We Need More Federal 
Judges for Our Various States," not to mention the necessary officers 
of the court. 

Yet here we come with legislation which, in addition to its other 
defects, also threatens to interfere with other more important values 
in our system of justice by needlessly and recklessly contributing to 
the already critical problem of court congestion. 

It comes as no surprise to learn that our courts are in crisis. Each 
year the caseload cast upon overworked Federal judges increases sig- 
nificantly. Each year the Chief Justice of the United States plaintively 
calls for restraints and circumspection by this Congress in the creation 
of whole new categories of cases to be dumped into Federal courts. 
Each year Congress, nevertheless, adds more and more burdens to the 
Federal courts.. 

As a result, the Federal judiciary, which was designed to be the srreat 
bulwark of constitutional interpretation and implementation, is being 
steadily transformed into an institution distracted by petty claims 
and overwhelmed by massive and incomprehensive economic con- 
frontation. 

; What are the statistics, Mr. President ? Since 1960 the number of 
civil cases in Federal district court has increased more than 100 per- 
cent, to a total of more than 117.000 cases in the year 1975 alone. Let 
me repeat that just for the purpose of emphasis : During the year since 
1960 the number of civil cases commenced in Federal district courts 
increased more than 100 percent and in year 1975 reached the level of 
117.320 cases, to be exact. 

From 1960 to 1975 in the district court, civil caseload Federal ques- 
tion cases grew from 13,175 to 52,688. The way I figure it, Mr. Presi- 
dent, that is approximately a 400-percent increase. 

Diversity cases filings were up from 17.000 to 30.631, and this was a 
79-percent increase. From 1960 to 1975, the number of civil antitrust 
cases filed in the Federal court system increased by 278 percent. 



184 



Mr. President, T think those statistics make my point for me, and I 
will not consume further of the Senate's time. 

Hut I do hope that Senators will take a new and fresh look at the 
additional burden this bill if enacted and if signed by the President 
would confer upon the already overburdened judicial system of our 
country. 

Mr. President. 1 call up my amendment and ask that it be stated. 
The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows: 
The Senator from North Carolina (Mr. Helms) proposes amendment No. 2393. 
Mr. Helms. Mr. President. I ask unanimous consent that reading of 
the amendment be dispensed with. 

The Presiding Officer. Without objection, it is so ordered. 
The amendment is as follows : 

On page 1, line 10, strike out the word "costs'." and substitute in lieu thereof 
the following : "costs, but in the event the prevailing party is a defendant in any 
action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 
19S1 of the Revised Statutes, or of title II, VI, or VII of the Civil Rights Act of 
L964, or of the Voting Rights Act of 1965, then the court shall award to such pre- 
vailing party defendant, other than the United States, a reasonable attorney's 
fee as part of the costs.'." 

Mr. Helms. Mr. President, I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President, I move to lay on the table the amend- 
ment and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on the motion to lay on the 
table the amendment. The yeas and nays have been ordered, and the 
clerk will call the roll. 

The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh) , the Senator from Texas (Mr. Bentsen) , the Senator from 
Delaware (Mr. Biden), the Senator from Virginia (Mr. Harry F. 
Byrd, Jr.) , the Senator from Nevada (Mr. Cannon) , the Senator from 
Florida ( Mr. Chiles), the Senator from Iowa (Mr. Culver), the Sena- 
tor from Mississippi (Mr. Eastland) . the Senator from Michigan (Mr. 
Philip A. Hart), the Senator from Indiana (Mr. Hartke), the Sena- 
tor from Minnesota (Mr. Humphrey), the Senator from Mas- 

[S 16883] 

sachusetts (Mr. Kennedy ), the Senator from Wyoming (Mr. McGee), 
the Senator from New Hampshire (Mr. Mclntyre) , the Senator from 
Montana (Mr. Metcalf), the Senator from Minnesota (Mr. Mondale), 
the Senator from New Mexico (Mr. Montoya) , the Senator from Wis- 
consin (Mr. Nelson), the Senator from Rhode Island (Mr. Pastore), 
the Senator from Mississippi (Mr. Stennis), the Senator from Mis- 
souri (Mr. Symington), the Senator from Georgia (Mr. Talmadge), 
and the Senator from California (Mr. Tunney) are necessarily absent. 



185 



I also announce that the Senator from Ohio (Mr. Glenn) , the Sena- 
tor from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Minnesota (Mr. Humphrey) and the Senator from Khode Island (Mr. 
Pastore) would each vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from New York (Mr. Buckley), the Senator from 
Nebraska (Mr. Curtis), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Goldwater), the Senator from Wyoming 
(Mr. Hansen), the Senator from Nebraska (Mr. Hruska), the Senator 
from New York (Mr. Javits) , the Senator from Nevada (Mr. Laxalt) , 
the Senator from Delaware (Mr. Roth), the Senator from Virginia 
(Mr. William L. Scott), the Senator from Vermont (Mr. Stafford), 
the Senator from Connecticut (Mr. Weicker), and the Senator from 
North Dakota (Mr. Young) are necessarily absent. 

The result was announced — yeas 46, nays 14, as follows : 

[RollcaU Vote No. 666 Leg.] 
YEAS-^6 



Abourezk 

Baker 

Bellmon 

Brock 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Domenici 

Durkin 

Eagleton 

Fong 



Ford 

Gravel 

Griffin 

Hart, Gary 

Haskell 

Hatfield 

Hathaway 

Hollings 

Huddleston 

Inouye 

Jackson 

Johnston 

Leahy 

Magnuson 

Mathias 

Moss 



Muskie 

Packwood 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stevens 

Stevenson 

Taft 

Williams 



NAYS — 14 



Allen 

Bartlett 

Fannin 

Garn 

Helms 



Long 

McClellan 

McClure 

Morgan 

Nunn 



Sparkman 
Stone 
Thurmond 
Tower 



Bayh 

Beall 

Bentsen 

Biden 

Buckley 

Byrd, Harry F., Jr. 

Cannon 

Chiles 

Culver 

Curtis 

Dole 

Eastland 

Glenn 

Goldwater 



NOT VOTING — 40 

Hansen 

Hart, Philip A. 

Hartke 

Hruska 

Humphrey 

Javits 

Kennedy 

Laxalt 

Mansfield 

McGee 

McGovern 

Mclntyre 

Metcalf 

Mondale 



Montoya 
Nelson 
Pastore 
Roth 

Scott, William L. 

Stafford 

Stennis 

Symington 

Talmadge 

Tunney 

Weicker 

Young 



186 



So the motion to table was agreed to. 

M p. I [elm b. M r. 1 'resident, I ask unanimous consent that Mr. George 
I hicworth, of Senator Thurmond's staff, be accorded the privileges of 
the floor during discussion of this measure and any votes thereon. 

The Presiding Officer. Without objection, it is so ordered. 

Mr. Helms. Mr. President, I ask unanimous consent that Sylvia t 
Castellanos of Senator McClure's staff and Dick Bryan of my staff 
be granted the privilege of the floor during discussion of this measure 
and any votes thereon. 

The Presiding Officer. Without objection, it is so ordered. 

Mr. Helms. Mr. President, I call up amendment No. 2410 and ask 
that it be stated. 

The Presiding Officer. The amendment will be stated. 

The assistant legislative clerk read as follows : 

The Senator from North Carolina (Mr. Helms) proposes an amendment on 
page 1, line 5, delete the following : "or proceeding". 

Mr. Helms. Mr. President, the amendment, as read, speaks for itself, 
and I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

Mr. Abotjrezk. Mr. President, I move to lay the amendment on the 
table. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to lay the amendment on the table. 

The yeas and nays have been ordered. The clerk will call the roll. 
The assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Indiana 
(Mr. Bayh) , the Senator from Texas (Mr. Bentsen) , the Senator from 
Delaware (Mr. Biden), the Senator from Virginia (Mr. Harry F. 
Byrd, Jr.), the Senator from Nevada (Mr. Cannon), the Senator from 
Florida (Mr. Chiles), the Senator from California (Mr. Cranston), 
the Senator from Mississippi (Mr. Eastland), the Senator from Mich- 
igan (Mr. Philip A. Hart), the Senator from Indiana (Mr. Hartke), 
the Senator from Colorado (Mr. Haskell), the Senator from South 
Carolina (Mr. Hollings), the Senator from Minnesota (Mr. Humph- 
rey), the Senator from Wyoming (Mr. McGee), the Senator from 
Rhode Island (Mr. Pastore), the Senator from New Hampshire (Mr. 
Mclntyre), the Senator from Minnesota (Mr. Mondale), the Senator 
from New Mexico (Mr. Montoya), the Senator from Wisconsin (Mr. 
Nelson), the Senator from Mississippi (Mr. Stennis) , the Senator from 
Missouri (Mr. Symington), the Senator from Georgia (Mr. Tal- 
rnadge), and the Senator from California (Mr. Tunney) are neces- 
sarily absent. 

I also announce that the Senator from Ohio (Mr. Glenn), the Sen- 
ator from Montana (Mr. Mansfield), and the Senator from South 
Dakota (Mr. McGovern) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Minnesota (Mr. Humphrey) and the Senator from Rhode Island (Mr. 
Pastore) would each vote "yea." 



187 



Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from New York (Mr. Buckley), the Senator from 
Nebraska (Mr. Curtis), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Fannin) , the Senator from Hawaii (Mr. 
Fong), the Senator from Arizona (Mr. Gold water), the Senator from 
Wyoming (Mr. Hansen), the Senator from Nebraska (Mr. Hruska), 
the Senator from New York (Mr. Javits), the Senator from Nevada 
(Mr. Laxalt), the Senator from Delaware (Mr. Roth), the Senator 
from Vermont (Mr. Stafford), the Senator from Texas (Mr. Tower), 
the Senator from Connecticut (Mr. Weicker) , and the Senator from 
North Dakota (Mr. Young) are necessarily absent. 

The result was announced — yeas 47, nays 11, as follows : 

[Rollcall Vote No. 667 Leg.] 

YEAS — 47 



Abourezk 

Baker 

Bellmon 

Brock 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Culver 

Domenici 

Durkin 

Eagleton 

Ford 



Gravel 

Griffin 

Hart, Gary 

Hatfield 

Hathaway 

Huddleston 

Inouye 

Jackson 

Johnston 

Kennedy 

Leahy 

Long 

Magnuson 
Mathias 
Metcalf 
Moss 



Muskie 

Nunn 

Packwood 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stevenson 

Stone 

Taft 

Williams 



NAYS— 11 



Allen 
Bartlett 
Garn 
Helms 



McClellan 

McClure 

Morgan 

Scott, William L. 



Sparkman 

Stevens 

Thurmond 



Bayh 

Beall 

Bentsen 

Biden 

Buckley 

Byrd, Harry F., Jr. 

Cannon 

Chiles 

Cranston 

Curtis 

Dole 

Eastland 

Fannin 

Fong 



NOT VOTING — 42 

Glenn Mclntyre 

Goldwater Mondale 

Hansen Montoya 

Hart, Philip A. Nelson 

Hartke Pastore 

Haskell Roth 

Hollings Stafford 

Hruska Stennis 

Humphrey Symington 

Javits Talmadge 

Laxalt Tower 

Mansfield Tunney 

McGee Weicker 

McGovern Young 



So the amendment to lay on the table was agreed to. 

The Presiding Officer. The Senator from North Carolina. 

Mr. Helms. Mr. President, I would advise the Chair that shortly I 
shall call up amendment No. 2411, and I will ask at that time that it 
be stated. 



188 



Mr. President, just prior to the immediately preceding vote, the 
Senator from North Carolina was discussing some statistics relating 
to I be already existing congestion in the Federal courts. 

I think it ifl important to say for the record that this Senate ought to 
exorcise care before approving legislation which would even worsen 
a very bad existing situation. 

I have a few more statistics to offer for the record, Mr. President. 

There arc between 92,000 and 93,000 social security cases now pend- 
ing before 

[S 16884] 

administrative law judges and between 14,000 and 15,000 cases are 
pending before the appeals counsel. 

The Narcotic Addict Rehabilitation Act of 1966 produced many 

cases. 

When it comes to civil acts cases in the civil caseloads, three laws 
are primarily responsible for increasing the work of the district courts. 
They are the Civil Rights Act of I960, the Civil Rights Act of 1964, 
and'the Equal Employment Opportunity Act of 1972. 

These three laws alone, Mr. President, yielded a total of 10,392 cases 
in calendar year 1975. This amounted to 8.9 percent of the total civil 
caseload in the district courts. 

The National Environmental Policy Act of 1969 became law on 
January 1, 1970, of course, and in the year 1973, which is the first year 
for which statistics are available, 270 environmental cases were filed. 
In 1974, the number increased to 343. In 1975, to 406. This is an in- 
crease of 50 percent in just 2 years' time. 

Mr. President, these cases represent complex issues and, of course, 
they consume a disproportionately high number of judicial work hours. 

The truth-in-lending laws passed in 1968 and 1970 began to make 
their impact on the civil caseloads of district courts in 1970 when 101 
such cases were filed. In 1975, just 5 years later, there were 2,237 of 
these cases, and that is more than a 2.000-percent increase in that 
5-year period. 

Labor law cases, Mr. President, increased in number by 212 percent 
in the years between 1960 and 1975. 

One of the more remarkable increases has occurred in the area of 
prisoner petitions, which have increased, Mr. President, by 786 percent. 

The Consumer Products Safety Act became effective late in 1972, 
and already thousands of cases have been filed under that legislation. 

Then we have the Freedom of Information Act. the National Flood 
Control Insurance Act of 1968, the Motor Vehicle Information Cost 
Savings Act — and the Senator from North Carolina is inclined to 
laugh when he reads that title. 

Moreover, we have the Equal Credit Opportunity Act Amendments 
of 1976 and the Consumer Leasing Act of 1976, all of which have added 
to the caseload of our Federal legal system. 

Mr. President, cannot Senators see what we are doing to our system 
of justice? 

The criminal caseloads of the district courts was burdened addi- 
tionally by laws dealing with weapons and firearms. Two laws, par- 
ticularly irrelevant, are the Omnibus Crime and Safe Streets Act of 
1960 and the Gun Control Act of 1968, which made their impact. 

From 1965 to 1975, there was a great deal of activity concerning 
selective service due to the Vietnam war. 



189 



The criminal caseload was augmented by 380 such cases in 1965 
alone and that figure rose steadily to 1972 when there was a peak of 
5,142 cases, which just happens to figure out, Mr. President, to be 
1,200 percent over the number filed in 1965. 

With the end of the war, there was a dramatic decrease, to the point 
that there were only 242 cases in 1975. 

Mr. President, these figures demonstrate that Congress already has 
seriously overloaded the Federal court system. Here we come along 
with another piece of legislation which, in the judgment of the Sena- 
tor from North Carolina, is totally unnecessary and thoroughly un- 
desirable. 

The figures speak for themselves, Mr. President. With these com- 
ments, I reserve the remainder of my time. 

AMENDMENT NO. 2411 

Mr. Helms. Mr. President, I call up my amendment and ask for its 
immediate consideration. 

The Presiding Officer. The amendment will be stated. 
The assistant legislative clerk read as follows : 

The Senator from North Carolina (Mr. Helms) proposes an amendment num- 
bered 2411 to amendment No. 2347 : 
On page — , line 6, delete the following "1981". 

Mr. Helms. Mr. President, the amendment speaks for itself. I ask 
for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President, I move to table the amendment and 
I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 
to table the amendment of the Senator from North Carolina. The yeas 
and nays have been ordered, and the clerk will call the roll. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Delaware (Mr. Biden), the Senator from 
Virginia (Mr. Harry F. Byrd, Jr.), the Senator from Nevada (Mr. 
Cannon), the Senator from Florida (Mr. Chiles), the Senator from 
Mississippi (Mr. Eastland), the Senator from Michigan (Mr. Philip 
A. Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Colorado (Mr. Haskell), the Senator from South Carolina (Mr. Rol- 
lings), the Senator from Minnesota (Mr. Humphrey), the Senator 
from Wyoming (Mr. McGee) , the Senator from New Hampshire (Mr. 
Mclntyre), the Senator from Montana (Mr. Metcalf), the Senator 
from Minnesota (Mr. Mondale), the Senator from New Mexico (Mr. 
Montoya), the Senator from Wisconsin (Mr. Nelson), the Senator 
from Rhode Island (Mr. Pastore), the Senator from Mississippi (Mr. 
Stennis), the Senator from Missouri (Mr. Symington), the Senator 
from Georgia (Mr. Talmadge) , and the Senator from California (Mr. 
Tunney) are necessarily absent. 



190 



I also announce that the Senator from Ohio (Mr. Glenn), the Sena- 
tor from South Dakota (Mr. MeGovern) , and the Senator from Mon- 
tana ( Mr. Mansfield ) are absent on official business. 

I further announce that, if present and voting, the Senator from 
Rhode Island (Mr. Pastore), and the Senator from Minnesota (Mr. 
Humphrey) would each vote a yea". 

Mr. Griffin, I announce that the Senator from Maryland (Mr. 
Beall >. i he Senator from New York (Mr. Buckley), the Senator from 
Nebraska (Mr. Curtis), the Senator from Kansas (Mr. Dole), the 
Senator from Arizona (Mr. Fannin), the Senator from Hawaii (Mr. 
Fong) , the Senator from Arizona (Mr. Goldwater) , the Senator from 
Wyoming (Mr. Hansen), the Senator from Nebraska (Mr. Hruska), 
the Senator from New York (Mr. Javits), the Senator from Nevada 
(Mr. Laxalt), the Senator from Delaware (Mr. Eoth), the Senator 
from Vermont (Mr. Stafford), the Senator from Texas (Mr. Tower), 
the Senator from Connecticut (Mr. Weicker), and the Senator from 
North Dakota (Mr. Young) are necessarily absent. 

The result was announced — yeas 50, nays 9, as follows : 

[Rollcall Vote No. 668 Leg.] 



Abourezk 

Baker 

Bayh 

Bellmon 

Brock 

Brooke 

Bumpers 

Burdick 

Byrd, Robert C. 

Case 

Church 

Clark 

Cranston 

Culver 

Domenici 

Durkin 

Eagleton 



Allen 

Bartlett 

Garn 



YEAS— 50 



Ford 

Gravel 

Griffin 

Hart, Gary 

Hatfield 

Hathaway 

Huddleston 

Inouye 

Jackson 

Johnston 

Kennedy 

Leahy 

Long 

Magnuson 
Mathias 
Morgan 
Moss 



NAYS— 9 



Helms 

McClellan 

McClure 



Muskie 

Nunn 

Packwood 

Pearson 

Pell 

Percy 

Proxmire 

Randolph 

Ribicoff 

Schweiker 

Scott, Hugh 

Stevens 

Stevenson 

Stone 

Taft 

Williams 



Scott, William L. 

Sparkman 

Thurmond 



Beall 
Bentsen 
Biden 
Buckley 

Byrd, Harry F., Jr. 

Cannon 

Chiles 

Curtis 

Dole 

Eastland 

Fannin 

Fong 

Glenn 

Goldwater 



NOT VOTING— 41 

Hansen Mondale 

Hart, Philip A. Montoya 

Hartke Nelson 

Haskell Pastore 

Hollings Roth 

Hruska Stafford 

Humphrey Stennis 

Javits Symington 

Laxalt Talmadge 

Mansfield Tower 

McGee Tunney 

MeGovern Weicker 

Mclntyre Young 
Metcalt" 



191 



So the motion to lay on the table was agreed to. 

Mr. Robert C. Byrd. Mr. President, that is the last rollcall today. 

[122 Cong. Rec. S. 17048 (daily ed. Sept. 29, 1976) ] 
Civil Rights Attorney's Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorney's Fees Awards Act of 1975. 

The Presiding Officer. The Senate will now resume consideration 
of the unfinished business which the clerk will state. 

The assistant legislative clerk read as follows : 

A bill (S. 2278) relating to the Civil Rights Attorney's Fees Awards Act of 1975. 
The Senate resumed consideration of the bill. 

[S 17049] 

Mr. Allen. Mr. President, I yield myself 2 minutes. 

Mr. Hansen. May we have order, Mr. President ? 

Mr. Allen. May we have order, Mr. President ? 

The Presiding Officer. The Senate will be in order. Senators will 
take their seats. The Senator from Alabama is entitled to be heard. 
The Senate is not in order. 

The Senate is now in order, and the Senator may proceed. 

Mr. Allen. Mr. President, this bill, S. 2278, the lawyers bill, hangs 
like the sword of Damocles over every piece of legislation pending in 
the Senate or that will come to the Senate from the House of Repre- 
sentatives between now and the adjournment date. 

I do not believe the bill is all that important because, while it has 
been said that it is a civil rights bill, actually it is a lawyers bill. 

I do not believe this bill providing for attorneys' fees for lawyers 
is so important that it should create a logjam here in the Senate which 
gives, in effect, every Senator a virtual veto over any legislation that 
might come before the Senate. 

The Presiding Officer. The Senator's 2 minutes have expired. 

Mr. Allen. I yield myself 2 additional minutes. 

Two or three days ago, I stated that I was going to give the Senate 
the opportunity of laying this bill aside in order that we could get 
on with the important work of the Senate. In accordance with that 
commitment, I now move that S. 2278 be indefinitely postponed. I ask 
for the yeas and nays. 

The Presiding Officer. Is there a sufficient second ? There is a suf- 
ficient second. 

The yeas and nays were ordered. 

Mr. Abourezk. Mr. President, I yield myself 2 minutes. 

The sword of Damocles referred to by the Senator from Alabama 
is in fact the motion to indefinitely postpone, not necessarily the civil 
rights lawyers' fee bill. I say that because what he is trying to do, in 
an effort to convince Senators to indefinitely postpone this matter, is to 
say that they can get all their matters through if they vote for his 
motion. 



79-586 0—77 14 



192 



I assure the Members of the Senate, in the famous words of one of 
our Presidents, that we can see the light at the end of the tunnel. We 
are virtually Hearing the end of this bill. We have gone through 
cloture. We have gone through late night sessions and early morning I 
sessions, in an effort to finish this matter, and we are nearly at the end. 1 
It would be a crying shame if the Senate were to put it aside now/j 
because we are virtually at the end. 

I ask- that the motion be defeated. 

Mr. Robert C. Byrd. Mr. President, I move to lay the motion on I 
the table. 

.Mr. A llen. I ask for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a suf- | 
ficient second. I 
The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the motion 1 
of the Senator from West Virginia. On this question the yeas and nays 1 
have been ordered, and the clerk will call the roll. 

The legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Nevada (Mr. Cannon), the Senator from 
Florida (Mr. Chiles), the Senator from Idaho (Mr. Church), the Sen- I 
ator from California (Mr. Cranston), the Senator from Michigan J 
(Mr. Philip A. Hart), the Senator from Indiana (Mr. Hartke), the | 
Senator from Wyoming (Mr. McGee), the Senator from Minnesota 
(Mr. Mondale), the Senator from New Mexico (Mr. Montoya), the | 
Senator from West Virginia (Mr. Randolph), the Senator from Con- 
necticut (Mr. RibicofT), the Senator from Georgia (Mr. Talmadge), 
the Senator from Arkansas (Mr. Bumpers), the Senator from Ken- 
tucky (Mr. Hudclleston) , and the Senator from Missouri (Mr. Syming- 
ton) are necessarily absent, 

I also announce that the Senator from Ohio (Mr. Glenn), the Sen- j 
ator from Montana (Mr. Mansfield), the Senator from Hawaii (Mr. 
Inouye), the Senator from South Dakota (Mr. McGovern) are absent ! 
on official business. 

I further announce that, if present and voting, the Senator from j 
West Virginia (Mr. Randolph) would vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. j 
Beall), the Senator from Tennessee (Mr. Brock), the Senator from \ 
New York (Mr. Buckley), the Senator from Kansas (Mr. Dole), the I 
Senator from Arizona (Mr. Goldwater), the Senator from Nebraska J 
(Mr. Hruska), the Senator from Vermont (Mr. Stafford), the Sen- ] 
ator from South Carolina (Mr. Thurmond), and the Senator from j 
Texas (Mr. Tower) are necessarily absent. 

I also announce that the Senator from Virginia (Mr. William L. 
Scott) is absent on official business. 

I further announce that, if present and voting, the Senator from i 
South Carolina (Mr. Thurmond) would vote "nay." 



193 



The result was announced— yeas 53, nays 17. as follows 

[Rollcall Vote No. 675 Leg. ] 



Abourezk 
Baker 
Bayh 
Biden 
Brooke 
Burdick 
Byrd, Robert C. 
Case 
Clark 
Culver 
Domenici 
Durkin 
Eagleton 
Fong 
Ford 
Gravel 
Griffin 
Hart, Gary 



Allen 

Bartlett 

Bellmon 

Byrd, Harry F., Jr. 
Curtis 



Eastland 



YEAS— 53 



Haskell 

Hatfield 

Hathaway 

Hollings 

Humphrey 

Jackson 

Javits 

Johnston 

Kennedy 

Leahy 

Magnuson 

Mathias 

Mclntyre 

Metcalf 

Moss 

Muskie 

Nelson 

Nunn 



NAYS— 17 



Fannin 

Garn 

Hansen 

Helms 

Laxalt 

Long 



Paekwood 

Pastore 

Pearson 

Pell 

Percy 

Proxmire 

Both 

Schweiker 

Scott, Hugh 

Sparkman 

Stevens 

Stevenson 

Stone 

Taft 

Tunney 

Weicker 

AVilliams 



McClellan 

McClure 

Morgan 

Stennis 

Young 



NOT VOTING— 30 



Beall 


Glenn 


Bentsen 


Goldwater 


Brock 


Hart, Philip A. 


Buckley 


Hartke 


Bumpers 


Hruska 


Cannon 


Huddleston 


Chiles 


Inouye 


Church 


Mansfield 


Cranston 


McGee 


Dole 


McGovern 



Mondale 
Montoya 
Randolph 
Ribicoff 

Scott, William L. 
Stafford 
Symington 
Talmadge 
Thurmond 
Tower 

So the motion to lay on the table was agreed to. 
Mr. Robert C. Byrd. Mr. President, I think there is a fairly good 
possibility that the Senate will complete action on this bill tonight. 
We may have to stay in late, but there will be some important votes, 
and I would anticipate that if the Senate passes this bill there will be 
another very important vote this evening. So I would hope Senators 
would schedule their dinners accordingly. 



AMENDMENT NO. 2419, AS MODIFIED 



Mr. Allen. Mr. President, I call up my amendment No. 2419. 
The Presiding Officer. The clerk will report. 
The legislative clerk read as follows : 

The Senator from Alabama (Mr. Allen) for himself, Mr. Helms, Mr. Thurmond, 
Mr. William L. Scott, and Mr. Stone proposes amendment No. 2419 (as modified). 



Mr. Pastore. Mr. President, may we have order if we are going to 
get out of here by 8 o'clock i 1 think we ought to get busy. 
The legislative clerk continued to read as follows : fl 

On page 1, Line 7, after "92-318," insert the following: "or in any civil action | 
or proceeding, by or on behalf of the United States of America, to enforce, or 
charging a violation of, a provision of the United States Internal Revenue Code,", 

Mr. Allen. Mr. President, I yield myself 3 minutes. \ 
Mr. President, this amendment is not unfamiliar to the Senate. It h 
is similar to the Goldwater amendment. It is similar to an amendment 1 
that the Senate registered 3 ( J votes for in earlier proceedings with a | 
reduced membership of the Senate. L 

A\ hat it does is to add to the civil rights attorneys' fees provision 
a provision that if the Internal Revenue Service or the U.S. Govern- L 
ment brings a civil action against a taxpayer to enforce any provision 1 
of the Internal Revenue Code, and the Government does not prevail ] 
against the taxpayer, then the court, in its discretion, just as in the 
otner cases, would be entitled to award the taxpayer reasonable at- i 
torneys' fees. That is all it does, and I hope the amendment will be | 
agreed to. 

I might say that this amendment is offered on behalf of the dis- 
tinguished Senator from North Carolina (Mr. Helms), Mr. Thur- 
mond, Mr. William L. Scott. If this amendment is adopted, the Sena- 
tor from Alabama, Mr. Helms, Mr. Thurmond, and Mr. William L. 
Scott will call up no further amendment, will make no further state- 
ments with respect to the bill. 

Mr. Abourezk. Mr. President, a parliamentary inquiry. 

The Presiding Officer. The Senator will state it. 

Mr. Abourezk. Does the amendment offered by the Senator from 
Alabama mend the Kennedy substitute? 

[S 17050] 1 

The Presiding Officer. The Senator is correct. 

Mr. Abourezk. It does not amend the original bill? 

The Presiding Officer. That is correct. 

Mr. Abourezk. I would like to say, speaking as manager of this 1 
bill, this amendment is acceptable to the committee, and we will be 
willing to accept it. 

I understand the Senator from Alabama would like a rollcall vote I 
on it, which we would be very happy to take part in. 

The Presiding Officer. The Senator from North Carolina. 

Mr. Helms. Mr. President, I yield myself 1 minute. I am delighted 
to cosponsor this amendment with the distinguished Senator from 
Alabama. It will provide a measure of equity and fairness to the 
taxpayers of this country who, in many instances, are being harassed 
and intimidated by the Internal Revenue Service. 

I am pleased that the able Senator from South Dakota and his 
associates are willing to accept it. 

Mr. Allen. Mr. President, I call for the yeas and nays. 

The Presiding Officer. Is there a sufficient second? There is a 
sufficient second. 



195 



The yeas and nays were ordered. 

Mr. Allen. Mr. President, I ask unanimous consent that the name 
of the distinguished Senator from Florida, now presiding, be shown 
as a cosponsor. 

The Presiding Officer. Without objection, it is so ordered. 

Mr. Tunney. Mr. President, as initial sponsor of S. 2278, I would 
like to make clear my understanding of the intent of this amendment, 
which I support. 

Essentially, it would apply to a situation where a taxpayer is 
harassed by the IKS. In such a case, a court has discretion to award 
reasonable attorneys' fees to the defendant. The standard to be applied 
is the one the courts have adopted with respect to prevailing defend- 
ants, as described in the Senate report. 

The purpose of this amendment is not to discourage meritorious 
lawsuits by the IRS, but to discourage frivolous or harassing lawsuits. 

The amendment would not apply to a situation where the Govern- 
ment is plaintiff on appeal since the Government did not bring the 
action in the first instance. 

The Presiding Officer. The question is on agreeing to the amend- 
ment of the Senator from Alabama. The yeas and nays have been 
ordered, and the clerk will call the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Nevada (Mr. Cannon), the Senator from 
Florida (Mr. Chiles), the Senator from Idaho (Mr. Church), the 
Senator from California (Mr. Cranston), the Senator from Michigan 
(Mr. Philip A. Hart), the Senator from Indiana (Mr. Hartke), the 
Senator from Minnesota (Mr. Humphrey), the Senator from Wyo- 
ming (Mr. McGee), the Senator from Minnesota (Mr. Mondale), the 
Senator from New Mexico (Mr. Montoya), the Senator from West 
Virginia (Mr. Randolph), the Senator from Connecticut (Mr. Ribi- 
coff), and the Senator from Georgia (Mr. Talmadge) are necessarily 
absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), the Senator from Hawaii 
(Mr. Inouye), and the Senator from South Dakota (Mr. McGovern) 
are absent on official business. 

I further announce that, if present and voting, the Senator from 
Minnesota (Mr. Humphrey), and the Senator from West Virginia 
(Mr. Randolph) would vote "yea." 

Mr. Griffin. I announce that the Senator from Maryland (Mr. 
Beall), the Senator from Oklahoma (Mr. Bellmon), the Senator from 
Tennessee (Mr. Brock), the Senator from New York (Mr. Buckley), 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), the Senator from Vermont (Mr. Stafford), the Senator 
from South Carolina (Mr. Thurmond), and the Senator from Texas 
(Mr. Tower) are necessarily absent. 

I also announce that the Senator from Virginia (Mr. William L. 
Scott) is absent on official business. 

I further announce that, if present and voting, the Senator from 
South Carolina (Mr. Thurmond) would vote "yea. ' 



196 



The result was announced — yeas 72, nays 0, as follows : 

[Rollcall Vote No. 676 Leg.] 

YEAS— 72 



Abourezk 


Griffin 


Moss 


Allen 


Hansen 


Muskie 


Baker 


Hart, Gary 


Nelson 


Bartlett 


Haskell 


Nunn 


Bayh 


Hatfield 


Packwood 


Biden 


Hathaway 


Pastore 


Brooke 


Helms 


Pearson 


Bumpers 


Hollings 


Pell 


Butdick 


Hruska 


Percy 


Byrd, Harry F., Jr. 


Huddleston 


Proxmire 


Byrd, Robert C. 


Jackson 


Roth 


( lase 


Javits 


Schweiker 


( lark 


Johnston 


J5COLL, xiugn 


( Julver 


Kennedy 


Sparkman 


Curtis 


Laxalt 


Stennis 


Domenici 


Leahy 


Stevens 


Durkin 


Long 


Stevenson 


Eagleton 


Magnuson 


Stone 


Eastland 


Mathias 


Symington 


Fannin 


Mci^ieiian 


To -P4- 

latt 


Fong 


AlcClure 


Tunney 


r ord 


Mclntyre 


Weicker 


Garn 


xueicair 


Williams 


Gravel 


Morgan 


Young 




J\ A x fe — (J 






NOT VOTING— 28 




Beall 


Glenn 


Montoya 


Bellmon 


Goldwater 


Randolph 


Bentsen 


Hart, Philip A. 


Ribicoff 


Brock 


Hartke 


Scott, Willia 


Buckley 


Humphrey 


Stafford 


Cannon 


Inouye 


Talmadge 


Chiles 


Mansfield 


Thurmond 


Church 


McGee 


Tower 


Cranston 


McGovern 




Dole 


Mondale 





So the amendment, as modified, was agreed to. 



Civil Eights Attorneys' Fees Awards Act 

The Senate continued with the consideration of the bill (S. 2278) 
relating to the Civil Rights Attorneys' Fees Awards Act of 1975. 

Mr. Kennedy. Mr. President, I understand the parliamentary situ- 
ation now is that 

Mr. Stexxis. Mr. President, may we have it quiet, so the Senator 
can be heard \ 

The Presidixg Officer. The Senate will be in order. 

Mr. Kennedy [continuing]. That my amendment is now the business 
before the Senate. Is that correct? 

The Presiding Officer. The Senator is correct. 

Mr. Kennedy. I yield myself 1 minute, Mr. President, to say that I 
welcome the Allen amendment. While the original purpose of this 
bill was to authorize awards of fees in court actions brought to en- 



197 



force our civil rights laws, there is no question that there are numer- 
ous other situations where recoveries of such fees are justified. 

One such situation is indeed where taxpayers suffer harassment 
from the Internal Revenue Service. As I understand the provisions of 
the Allen amendment, a court would be authorized to award attorneys' 
fees to a taxpayer who is a defendant in a civil action brought by the 
U.S. Government to enforce the provisions of the Internal Revenue 
Code. The usual standard applied in cases where fees are awarded to 
prevailing defendants would apply here as well — that is, awards are 
appropriate where the action initiated by the plaintiff, the Govern- 
ment, acted in a frivolous or vexatious manner or brought the suit for 
purposes of harassment. 

All of us in Congress have heard, I am sure, of instances where 
taxpayers have been unjustifiably harassed by lawsuits which had little 
or no merit, but which forced them to expend enormous resources to 
defend themselves. Their victories are often illusory, however, as the 
law does not permit them to recover their legal fees in defending these 
suits, however unwarranted they may be. Adoption of this amendment 
would provide needed financial relief to such taxpayers. 

Since the amendment is intended to apply solely to prevailing de- 
fendants in tax cases, the courts would be guided by well-settled judi- 
cial standards in the exercise of their discretionary authority to make 
fee awards to defendants. These standards are discussed in the Senate 
report on S. 2278. They are discussed with greater detail in the House 
report on its companion bill. In general, the taxpayer would have to 
show bad faith on the part of the Government in bringing suit against 
him in order for fees to be allowed. 

The courts have articulated the policy reasons for utilizing a stricter 
test in awarding fees to prevailing defendants 

[S 17051] 

than to prevailing plaintiffs, and these apply equally in tax cases and 
in actions brought to enforce the civil rights laws. Awarding fees 
to prevailing defendants is intended to protect parties from being 
harassed by unjustifiable lawsuits. It is not. however, intended to deter 
plaintiffs from seeking to enforce the protections afforded by our civil 
rights laws, or in this instance to deter the Government from instituting 
legitimate tax cases by threatening it with the prospect of having to 
pay the defendant's counsel fees should it lose. Were Congress or the 
courts to provide otherwise, it would have a substantial chilling effect 
on the bringing of genuinely meritorious actions. I am sure that none of 
us would want to inhibit responsible lawsuits brought by the United 
States to enforce the tax laws of our country. 

It should be clear, then, that a provision authorizing fee awards 
in tax cases has a fundamentally different purpose from one authoriz- 
ing awards in lawsuits brought by private citizens to enforce the pro- 
tections of our civil rights laws. In enacting the basic civil rights 
attorneys fees awards bill, Congress clearly intends to facilitate and 
to encourage the bringing of actions to enforce the protections of the 
civil rights laws. By authorizing awards of fees to prevailing defend- 
ants in cases brought under the Internal Revenue Code, however, 
Congress merely intends to protect citizens from becoming victims of 



198 



frivilous or otherwise unwarranted lawsuits. Enactment of this amend- 
ment should in no way bo understood as implying that Congress 
intends to discourage the Government from initiating legitimate law- 
suits under the tax laws. 

That Congress mus< act to provide means for citizens to enforce 
laws thai are enacted for their protection can no longer be disputed/ 
It has already included provisions for awards of attorneys fees in 
over 50 statutes. I was pleased to see that on Tuesday the Senate 
adopted the conference report on the Toxic Substances Act, which 
contains several attorneys fees provisions. The debate on the Senate | 
floor during the past week has underscored the importance of includ- | 
ing attorneys' fees provisions in all of our civil rights laws. I think ; 
the adoption of Senator Allen's amendment complements the legisla- 
tion we are now considering, and I would very much hope that we 
would move to its immediate passage. 

Mr. President, a parliamentary inquiry. 

The Presiding Officer. The Senator will state it. 

Mr. Kennedy. I believe that the yeas and nays have been ordered 
on the amendment. Am I correct? 

The Presiding Officer. The Senator is correct. 

Mr. Kennedy. It seems to me that we have voted basically on this 
principle when we voted on the Allen amendment, and I would be 
glad to have a voice vote so we could get to passage of the measure, 
unless there will be objection. 

I ask unanimous consent that the order for the yeas and nays be , 
vitiated, so that we can go to third reading and passage. 

The Presiding Officer. Is there objection? Without objection, it is ; 
so ordered. 

Mr. Abourezk. Mr. President, I ask unanimous consent that the j 
vote on passage be limited to 10 minutes. 

Mr. Robert C. Byrd. Mr. President, I hope the Senator, in this 
instance, will not ask for a 10-minute rollcall. There are certain Sena- 
tors who are attending a reception for Phil Hart, and I am afraid 
they would miss that vote. 

Mr. Abourezk. I withdraw the request. 

Mr. Stennis. What was the announcement, Mr. President? 
Mr. Abourezk. I withdraw my request for a 10-minute vote. 
Mr. Robert C. Byrd. I ask for the yeas and nays. 
The Presiding Officer. Is there a sufficient second ? There is a suffi- 
cient second. 

The yeas and nays were ordered. 

The Presiding Officer. The question is on agreeing to the amend- > 
ment of the Senator from Massachusetts, as amended. 
The amendment, as amended, was agreed to. 

Mr. Kennedy. I move to reconsider the vote by which the amend- 
ment was agreed to. 

Mr. Abourezk. I move to lay that motion on the table. 
The motion to lay on the table was agreed to. 

Mr. Allen. Mr. President, will the Senator now accept my amend- 
ment designating this bill the Kennedy-Tunney- Abourezk lawyers 
relief bill? 

Mr. Abourezk. Mr. President, may I be recognized on that? 



199 



The Presiding Officer. No. 
[Laughter.] 

Mr. Abourezk. What if I said please ? 
Several Senators addressed the Chair. 

The Presiding Officer. The question is on the engrossment and 
third reading of the bill. 

The bill was ordered to be engrossed for a third reading, and was 
read the third time. 

Mr. Abourezk. If I said please, could I be recognized? 

I just want to make a response to the question of Senator Allen as 
to whether we would accept a name change. 

I think, in view of the fact that the Senate has accepted his amend- 
ment on it, it ought to be called the Kennedy-Tunney-Abourezk-AUen- 
Thurmond-Helms- Scott amendment. 

[Laughter.] 

The Presiding Officer. The question is, Shall the bill pass? 

Mr. Tunney. Mr. President, before we vote, I would like to say to 
my colleagues how deeply I appreciate the Senator from South Da- 
kota's (Mr. Abourezk) floor management of the bill, which was my 
legislation, and also how much I appreciate the very hard work of 
the majority whip in making sure this legislation stays on track, 
and the work of Senator Kennedy and the others who played a part. 
I, unfortunately, was not able to be present during the major part of 
the consideration of this legislation, but it was in extraordinarily good 
hands in the hands of Senator Abourezk. I thank him personally for 
having floor-managed the bill. 

Mr. President, the Senate is nearing enactment of S. 2278 — legis- 
lation that is vitally important to the enforcement of our Nation's 
civil rights laws. 

As we all know, the last 7 days have been difficult — the bill's fate 
unclear during much of the time. 

It is clear to me that without the determination and care shown 
by the junior Senator from South Dakota, and ample help from a bi- 
partisan group of Senators and the Acting Majority Leader, this bill 
would have died. 

Instead, it survived and we can be very hopeful that it will be en- 
acted into law this session. 

I am proud to have been its initial sponsor. 

I see it as a cornerstone of legislation developed by the Subcom- 
mittee on Constitutional Rights, which I chair, on the subject of 
access to justice. 

The problem of unequal access to the courts in order to vindicate 
congressional policies and enforce the law is not simply a problem for 
lawyers and courts. Encouraging adequate representation is essential 
if the laws of this Nation are to be enforced. Congress passes a great 
deal of lofty legislation promising equal rights to all. 

Although some of these laws can be enforced by the Justice Depart- 
ment or other Federal agencies, most of the responsibility for enforce- 
ment has to rest upon private citizens, who must go to court to prove 
a violation of the law. This fact has been recognized in statutes spe- 
cifically giving private citizens the right to go to court to redress 
grievances, and by court decisions which have broadly expanded the 



200 



concepts of private causes of action and standing to sue. But without 
the availability of counsel fees, these rights exist only on paper. Pri- 
vate en izens must be given not only the rights to go to court, but also 
the Legal resources. If the citizen does not have the resources, his day 
in court is denied him ; I he congressional policy which he seeks to assert 
and vindicate goes unvindicated ; and the entire Nation, not just the* 
individual cii izen, sutlers. 

Unless effect Lve ways are found to provide equal legal resources, the 
Nation must expect its most basic and fundamental laws to be objec- 
t ively repealed by the economic fact of life that the people these laws 
are meant to benefit and protect cannot take advantage of them. At- 
torneys' fees have proved one extremely effective way to provide these j 
equal legal resources, and are, in fact, an obvious and logical com- 
plement to citizen suit provisions. 

When Congress calls upon citizens — either explicitly or by construc- 
tion of its statutes — to go to court to vindicate its policies and benefit 
the entire Nation, Congress must also insure that they have the means 
to go to court, and to be effective once they get there. No one expects a 
policeman, or an officeholder, to pay for the privilege of enforcing the 
law. It should be no different for a private citizen, as the first circuit 
realized in the 1972 case of Knight against Auciello : 

[S 17052] 

The violation of an important public policy may involve little by way of actual 
damages, so far as a single individual is concerned, or little in comparison with 
the cost of vindication. ... If a defendant may feel that the cost of litigation, 
and, particularly, that the financial circumstances of an injured party may mean 
that the chances of suit being brought, or continued in the face of opposition, 
will be small, there will be little brake upon deliberate wrongdoing. 

We cannot hope for vigorous enforcement of our civil rights laws | 
unless we, in the words of the Knight court, "remove the burden from 
the shoulders of the plaintiff seeking to vindicate the public right.*' 
That is what this bill does, and why it is so vital. 

Mr. Kexxedy. Mr. President, I want to take a moment to address 
the charge, made by certain opponents of S. 2278, that this is a lawyers' j 
relief bill. That could not be further from the truth. 

The lawyer who undertakes to represent a client alleging a viola- 
tion of the civil rights statutes covered by this bill faces significant 
uncertainty of payment, even where he has a strong case. For there I 
is often important principles to be gained in such litigation, and rights 1 
to be conferred or enforced, but just as often no large promise of mone- j 
tary recovery lies at the end of the tunnel. So civil rights cases — unlike 
tort or antitrust cases — do not provide the prevailing plaintiff with a 
large recovery from which he can pay his lawyer. That is why Con- 
gress has already decided in many recent civil rights laws to include j 
provisions for recovery of attorneys' fees, in order to insure that the 
rights guaranteed by the laws are not lost through the inability of j| 
those who are supposed to benefit to obtain judicial enforcement of 
those rights. 

Even with enactment of this bill, the lawyer who undertakes to rep- i 
resent a client will face more uncertainty of payment than one in- 
volved in a usual contingency fee case. His fee is contingent not only 



201 



upon his success, but also upon the discretion of the judge before 
whom he appears. 

Even if he wins his case, and the judge decides he has won a fee as 
well, his rate of compensation is fixed not by a grateful client, but by 
a disinterested judge. In the traditional contingency case, the lawyer 
is assured of a high percentage of a monetary award should he win. 
If the proponents of this bill were interested in creating a relief fund 
for lawyers, they would surely have gone about it in a different 
fashion. 

No, this bill is not for the purpose of aiding lawyers. The purpose 
of this bill is to aid civil rights. Before the Alyeska case of last year, 
the Federal courts throughout the country were assuming that their 
traditional equity jurisdiction covered the granting of fees, and were 
awarding attorneys' fees under the statutes included in this bill. This 
practice was reviving the older civil rights statutes and increasing 
tremendously the enforcement of the rights involved. In Alyeska the 
Supreme Court said that, no matter how beneficial this practice might 
be in certain areas of the law, only Congress, and not the courts, had 
the power to decide which areas of the law deserved the additional 
inducement of attorneys' fees for enforcement. Civil rights is one of 
those areas. 

The provisions covered by this bill are laws, since they protect the 
most basic civil rights. There are laws which we have learned, sadly, 
are prone to be violated, and which require the utmost vigilance by 
private enforcement if they are not to be rendered useless. 

Mr. President, a short glance at a few cases under these laws may be 
instructive. These are all cases which were made possible by counsel fee 
awards before Alyeska, and which could probably not be brought to- 
day. They are but a few of the many examples of the need for this 
bill. 

In one case, a veteran of the U.S. Army died, and his family was told 
he could not be buried in the local cemetery because his skin was black. 
In other cases, black citizens had been systematically kept off the jury 
lists in many counties for years, thus denying; equal justice. In one 
case, a musician was repeatedly followed by police, stopped, harrassed 
and arrested — again because of his skin color. Then there was a case in 
which doctors who participated in a program of medical assistance to 
black citizens were denied any privileges in a local hospital. And a case 
where a highway was planned specifically to go through a black neigh- 
borhood and displace its residents, while carefully skirting around 
white neighborhoods. 

Then there was the case about the housing project which had sepa- 
rate rent scales, incredibly charging higher rents to those tenants who 
were on welfare. Another housing case involved a housing authority — 
unfortunately one of many — which operated separate projects which 
it kept rigidly segregated by race. Another black citizen had to go to 
court against a housing development which actually sent out thousands 
of handbills advertising it was "white only." In a case now pending, 
officials accepted Social Security Act funds for years for certain medi- 
cal screening programs when in fact they had no such programs in 
most of the State. Perhaps the saddest, most tragic case of all is the 
one in which mental patients, guilty of no crime or wrongdoing, were 
forced into involuntary, unpaid labor. 



202 



Mr. President, I could go on and on, with examples of conduct which 
this bill would help redress. Unfortunately, in each of these cases, the 
victim — or, as in some cases, like the deceased war veteran, the vic- 
tim's family — had to go to court to enforce the rights promised by 
Congress or the Constitution. In the aftermath of Alyeska, violations 
like these will go unredressed without enactment of this bill. 

T do not believe that those who oppose this bill really want our laws 
violated, but defeat of this measure would, until enactment in the next 
Congress, at least, rob our citizens of the ability to enforce their most 
basic civil rights. The net effect is to tell law violators that we will 
tolerate their lawlessness. We cannot do that, we should not do that. 
We must give our people the tools to avoid it. 

This legislation is vitally necessary and proper to carry out not only 
the laws covered, but all the provisions of the Constitution, including 
the 13th and 14th amendments. I hope we can get on with the business 
of passing S. 2278 without more delay. 

Mr. Abourezk. Mr. President, the Senate tonight, with the passage 
of S. 2278, the Civil Rights Attorney's Fees Award Act of 1976, has 
acted in a true spirit of compromise. I want to thank the distinguished 
Senator from Alabama for his good judgment and support this eve- 
ning. In passing this worthwhile measure, we have done a great service 
to the continuing struggle to eradicate discrimination in this country. 
We have assured that attornevs' fees will be available, in the discretion 
of the court, to successful litigants in suits brought under the re- 
construction era civil rights laws, title VI of the 1964 Civil Rights Act, 
title IX of the education amendments of 1972, and certain Internal 
Revenue Code suits brought by the Government. 

The many statutes covered by this bill are all major civil rights 
provisions, and the Senate report which my colleague from Alabama 
is so fond of quoting, said no differently. The report said that the 
major civil rights bills passed since 1964 included fee provisions. Five 
of the seven provisions covered by this bill were passed prior to 1964 ; 
two of the remaining three provisions covered by the bill are included 
in bills which contain at least one fee provision in other sections. These 
are major civil rights laws, and we have an obligation to guarantee 
their fullest enforcement. 

All of these laws depend heavily upon private parties for enforce- 
ment. If Congress wants these laws enforced — and I assume we would 
not have passed them if we did not — when we must provide some 
mechanism for insuring their enforcement. The fee-shifting mecha- 
nism has proved a particularly equitable and efficient means of en- 
forcing the law by enlisting private citizens as law enforcement offi- 
cials. It is a mechanism which increases law enforcement without in- 
creasing the Federal budget or bureaucracy. 

The Civil Rights Attorneys' Fees Awards Act authorizes Federal 
courts to award attorneys' fees to a prevailing party in suits presently 
pending in the Federal courts. The application of this Act to pending 
cases is in conformitv with the unanimous decision of the Supreme 
Court in Bradley v. School Board of City of Richmond, 416 U.S. 696 
(1974). 

This application is necessary to fill the gap created by the Alyeska 
decision and thus avoid the inequitable situation of an award of attor- 
neys' fees turning on the date the litigation was commenced. 



203 



It will also result in a significant saving of judicial resources. At 
present, due to the Alyeska decision, a court must analyze a party's 
actions to determine bad faith in order to award attorneys' fees. This 
is a complex, time-consuming process often requiring an extensive evi- 
dentiary hearing. The enactment of this legislation will make such an 
evidentiary hearing unnecessary in the many civil rights cases pres- 
ently pending in the Federal courts. 

In enacting this legislation we are act- 

[S 17053] 

ing pursuant to section 2 of the 13th amendment and section 5 of the 
14th amendment. The legislation is intended to cover all constitutional 
cases, including supremacy clause cases. 

In conclusion, I would like to say that I am proud of this body for 
taking this necessary step to insure that "equal protection under the 
law" is achieved. 

The Presidixg Officer. The question is, Shall the bill pass ? 

Mr. Abourezk. Mr. President, I yield myself 1 minute. I wish to 
express my thanks to Senator Robert C. Byrd for his assistance, to 
Senator Durkin for his help while this proceeding was going on, to 
the other members of the committee who helped, to the staff, and also 
to all the Members of the Senate for their patience in going through 
this entire filibuster procedure. It was very much appreciated by those 
of us working on the measure. 

Mr. Robert C. Byrd. Mr. President, I thank the Senator very much. 

The Presiding Officer. The question is, Shall the bill pass? The 
yeas and nays have been ordered, and the clerk will call the roll. 

Mr. Robert C. Byrd. Mr. President, no debate is in order, but this 
is not the last rollcall today. 

The second assistant legislative clerk called the roll. 

Mr. Robert C. Byrd. I announce that the Senator from Texas (Mr. 
Bentsen), the Senator from Virginia (Mr. Harry F. Byrd, Jr.), the 
Senator from Nevada (Mr. Cannon), the Senator from Florida (Mr. 
Chiles), the Senator from Idaho (Mr. Church), the Senator from 
California (Mr. Cranston), the Senator from Michigan (Mr. Philip 
A. Hart), the Senator from Indiana (Mr. Hartke), the Senator from 
Wyoming (Mr. McGee), the Senator from Minnesota (Mr. Mondale), 
the Senator from Xew Mexico (Mr. Montoya). the Senator from West 
Virginia (Mr. Randolph) , the Senator from Connecticut (Mr. Ribi- 
coff), and the Senator from Georgia (Mr. Talmadge) are neces- 
sarilv absent. 

I further announce that the Senator from Ohio (Mr. Glenn), the 
Senator from Montana (Mr. Mansfield), the Senator from South Da- 
kota (Mr. McGovernV, and the Senator from Hawaii (Mr. Inouye) 
are absent on official business. 

I further announce that, if present and voting, the Senator from 
West Virginia (Mr. Randolph) would vote "yea." 

Mr. Griffix. I announce that the Senator from Marvland (Mr. 
Beall), the Senator from Oklahoma (Mr. Bellmon). the Senator from 
Tennessee (Mr. Brock), the Senator from Xew York (Mr. Bucklev) , 
the Senator from Kansas (Mr. Dole), the Senator from Arizona (Mr. 
Goldwater), the Senator from Vermont (Mr. Stafford), the Senator 



204 



from South Carolina (Mr. Thurmond), and the Senator from Texas 
(Mr. Tower) are necessarily absent. 

I also announce that the Senator from Virginia (Mr. William L. 
Scott ) is absent on official business. 

I further announce that, if present and voting, the Senator from 
South Carolina ( Mr. Thurmond) would vote "nay." 

The result was announced — yeas 57, nays 15, as follows: 

[Rollcall Vote No. 677 Leg.] 



YEAS— 57 



Abourezk 


Baskell 


Nunn 


Ba ker 


Hatfield 


Pack wood 


Bayh 


Hathaway 


Pastore 


Biden 


Hollings 


Pearson 


Brooke 


Huddleston 


Pell 


Bumpers 


Humphrey 


Percy 


Burdick 


Jackson 


Proxmire 


Byrd, Robert C. 


Javits 


Roth 


Case 


Johnston 


Schweiker 


Clark 


Kennedy 


Scott, Hugh 


Culver 


Leahy 


Sparkman 


Domenici 


Magnuson 


Stevens 


I Mirkin 


Mathias 


Stevenson 


Eagleton 


Mclntyre 


Stone 


Fong 


Metcalf 


Symington 


Ford 


Morgan 


Taft 


Gravel 


Moss 


Tunney 


Griffin 


Muskie 


Weicker 


Hart, Gary 


Nelson 


Williams 




NAYS— 15 




Allen 


Garn 


Long 


Bartlett 


Hansen 


McClellan 


Curtis 


Helms 


McClure 


Eastland 


Hruska 


Stennis 


Fannin 


Laxalt 


Young 




NOT VOTING— 28 




Beall 


Dole 


Montoya 


Bellraon 


Glenn 


Randolph 


Bentsen 


Gold water 


Ribicoff 


Brock 


Hart, Philip A. 


Scott, Willia 


Buckley 


Hartke 


Stafford 


Byrd. Harry F.. Jr. 


Inouye 


Talmadge 


Cannon 


Mansfield 


Thurmond 


Chiles 


McGee 


Tower 


Church 


McGovern 




Cranston 


Mondale 





So the bill (S. 2278) . as amended, was passed, as follows : 

Be it enacted by the Senate and House of Representatives of the United States 
of America in ('o)ifjrcss assembled. That this Act may be cited as "The Civil 
Bights Attorney's Fees Awards Act of 1976". 

SBC. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is amended by 
adding the following : "In any action or proceeding to enforce a provision of sec- 
tions 1977. 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public 
l aw 92-318. or in any civil action or proceeding, by or on behalf of the United 
States of America, to enforce, or charging a violation of, a provision of the United 
States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the 
court, in its discretion, may allow the prevailing party, other than the United 
States, a reasonable attorney's fee as part of the costs.". 



205 



Mr. Allen. Mr. President 

Mr. Abourezk. Mr. President, I move to reconsider the vote by which 
the bill was passed. 
Mr. Durkix. I move to lay that motion on the table. 
The motion to lay on the table was agreed to. 

Mr. Morgan. Mr. President, I voted for the attorney's fees bill on 
final passage but only after a significant amendment was accepted by 
the Senate broadening it to cover attorney fees for prevailing defend- 
ants in actions brought against citizens of the Internal Revenue 
Service. 

I was taught in law school that the awarding of attorney fees by 
the courts was against public policy, as such awards tend to "stir up" 
or "promote" litigation. Nevertheless, the Federal courts, and some 
State courts, have in recent years strayed far from this principle — 
sometimes with the authority of statutory laws and sometimes without 
any authority. This became a regular practice in the Fourth Circuit 
Court of Appeals. 

Whether the public policy was correct or not, though in most cases 
I think it was, the question is now almost moot since so many excep- 
tions have been made. 

The proponents of the original bill had the votes to prevail as evi- 
denced by the vote on many amendments. The compromise made by 
accepting the amendment concerning IRS fees makes the bill more 
palatable and represents the best the opponents could accomplish. 

During consideration of this bill my colleague, Mr. Helms, of- 
fered an amendment which would have required the Federal Govern- 
ment to pay attorney fees to the prevailing defendants in all cases 
brought and lost by the Government. Because of the tendency of many 
agencies of Government to engage citizens and businesses in needless 
litigation it may be desirable to consider this issue again during the 
next Congress in order to discourage overzealous bureaucrats from 
hauling too many people into the courts. 

Therefore, I have voted aye on the bill as a compromise — which 
after all most legislation is. I am fearful however, that the measure 
will be abused — so I hope that the Congress will monitor the results 
and review the entire field of law relating to the awarding of attorney 
fees. 



COMMITTEE REPORTS 



D4th Congress ) HOUSE OF REPRESENTATIVES f Report 
2d Session J { No. 94-1558 



THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT 

OF 1976 



September 15, 1976.— Committed to the Committee of the Whole House on the 
State of the Union and ordered to be printed 



Mr. Drinan, from the Committee on the Judiciary, 
submitted the following 

REPORT 

[Including cost estimate of the Congressional Budget Office] 
[To accompany H.R. l."4G0] 

The Committee on the Judiciary, to whom was referred the bill 
(H.R. 15460) to allow the awarding of attorney's fees in certain civil 
rights cases, haying considered the same, report favorably thereon 
without amendment and recommend that the bill do pass. 

Purpose or the Bill 

H.R. 15460, the Civil Rights Attorney's Fees Awards Act of 1976, 
authorizes the courts to award reasonable attorney fees to the prevail- 
ing party in suits instituted under certain civil rights acts. Under 
existing law, some civil rights statutes contain counsel fee provisions, 
while others do not. In order to achieve uniformity in the remedies 
provided by Federal laws guaranteeing civil and constitutional rights, 
it is necessary to add an attorney fee authorization to those civil rights 
acts which do not presently contain such a provision. 

The effective enforcement of Federal civil rights statutes depends 
largely on the efforts of private citizens. Although some agencies of 
the United States have civil rights responsibilities, their authority and 
resources are limited. In many instances where these laws are violated, 
it is necessary for the citizen to initiate court action to correct the 
illegality. Unless the judicial remedy is full and complete, it will 
remain a meaningless right. Because a vast majority of the victims 
of civil rights violations cannot afford legal counsel, they are unable 
to present their cases to the courts. In authorizing an award of reason- 
able attorney's fees. H.R. 15460 is designed to give such persons 
effective access to the judicial process where their grievances can be 
resolved according to law. 

57-006 



(209) 



210 



2 

Statement 
a. meed for the legislation 

In .1 ///< ska Pipeline A< /v.vV?e C'w/j v. Wilderness Society, 4*21 U.S. 240 
I L975), the Supreme Court held that federal courts do not have the 
power to award attorney's fees to a prevailing party unless an Act of 
Congress expressly authorizes it. 1 In the Alyeska case, the plaintiffs 
sought to prevent the construction of the Alaskan pipeline because of 
i he damage it would cause to the environment. Although the plaintiffs 
succeeded in the early stages of the litigation, Congress later over- 
turned that result by legislation permitting the construction of the 
pipeline. Nonetheless the lower federal courts awarded the plaintiffs 
their attorney's fees because of the service they had performed in the 
public interest. The Supreme Court reversed that award on the basis 
of the "American Rule": that each litigant, victorious or otherwise, 
must pay for its own attorney. 

Although the Alyeska case involved only environmental concerns, 
the decision barred attorney fee awards in a wide range of cases,, 
including civil rights. In fact the Supreme Court, in footnote 46 of 
the Alyeska opinion, expressly disapproved a number of lower court 
decisions involving civil rights which had awarded fees without 
statutory authorization. Prior to Alyeska* such courts had allowed fees 
on the theory that civil rights plaintiffs act as "private attorneys 
general" in eliminating discriminatory practices adversely affecting 
all citizens, white and non-white. In 1968, the Supreme Court had 
approved the "private attorney general" theory when it gave a gener- 
ous construction to the attorney fee provision in Title II of the Civil 
Rights Act of 1964. Newman v. Piejgle Park Enterprises^ Inc., 390 
U.S. 400 ( li>68).- The Court stated : 

If (the plaintiff) obtains an injunction, he does so not 
for himself alone but also as a "private attorney general," 
vindicating a policy that Congress considered of the highest 
importance. Id. at 402. 

However, the Court in Alyeska rejected the application of that 
theory to the award of counsel fees in the absence of statutory author- 
ization. It expressly reaffirmed, however, its holding in Newman that,, 
in civil rights cases where counsel fees are allowed by Congress, "the' 
award should be made to the successful plaintiff absent exceptional 
circumstances." Alyeska case, supra, at 262. 

In the hearings conducted by the Subcommittee on Courts. Civil 
Liberties, and the Administration of Justice, the testimony indicated 
that civil rights litigants were suffering very severe hardships because 
of the Alyeska decision. Thousands of dollars in fees were auto- 
matically lost in the immediate wake of the decision. Representatives 
of the Lawyers Committee for Civil Rights Under Law, the Council 

1 The Court in Aliieska recognized three very narrow exceptions to the rule: (1) where a 
'•(•o:ninon hind" is involved; (2) where the Litigant's conduct is vexatious, harassing, or 
in had fait* : find CO where a court nrder is willfully disoheyed. 

- In TraMoante v. Metropolitan Life Insurance Co.. 409 U.S. 205 (1972), the Supreme 
Court applied the "private attorney general" theory in according broad "standing" to per- 
sons Inlnred by discriminatory housing practices under the Federal Fair Housing A'ct. 42' 
F.S.C. 3601 3619. 



211 



3 

for Public Interest Law, the American Bar Association Special Com- 
mittee on Public Interest Practice, and witnesses practicing in the field 
testified to the devastating impact of the case on litigation in the 
civil rights area. Surveys disclosed that such plaintiffs were the 
hardest hit by the decision. 3 The Committee also received evidence 
that private lawyers were refusing to take certain types of civil rights 
cases because the civil rights bar, already short of resources, could not 
afford to do so. Because of the compelling need demonstrated by the 
testimony, the Committee decided to report a bill allowing fees to pre- 
vailing parties in certain civil rights cases. 

It should be noted that the United States Code presently contains 
over fifty provisions for attorney fees in a wide variety of statutes. 
See Appendix A. In the past few years, the Congress has approved 
such allowances in the areas of antitrust, equal credit, freedom of in- 
formation, voting rights, and consumer product safety. Although the 
recently enacted civil rights statutes contain provisions permitting 
the award of counsel fees, a number of the older statutes do not. It is to 
these provisions that much of the testimony was directed. 

B. HISTORY OF H.R. 154 60 

At the time of the Subcomittee hearings on October 6 and 8. and 
Dec. 3, 1975, three bills were pending which dealt expressly with coun- 
sel fees in civil rights cases: H.R. 7828 (same as H.R. 8220) ; H.R. 
7969 (same as H.R. 8742) ; and II.E. 9552. H.R. 7828 and H.R. 9552 
would allow attorney fees to be awarded in cases brought under spe- 
cific provisions of the United States Code, while H.R. 7969 would 
permit such awards in any case involving civil or constitutional 
rights, no matter what the source of the claim. H.R. 7828 was stated 
in mandatory terms; H.R. 9552 and H.R. 7969 allowed discretionary 
awards. The Justice Department, through its representative. Assistant 
Attorney General Rex Lee of the Civil Division, expressed its support 
of H.R. 9552. Hearings held in 1973 by the Senate Judiciary Sub- 
committee on the Representation of Citizen Interests also highlighted 
the need of the public for legal assistance in this and other areas. 

In August. 1976, the Judiciary Subcommittee on Courts, Civil 
Liberties, and the Administration of Justice concluded that a bill 
to allow counsel fees in certain civil rights cases should be reported 
favorably in view of the pressing need. On August 26, 1976, the Sub- 
committee approved H.R. 9552 with an amendment in the nature of 
a substitute because it was similar to S. 2278, which had cleared the 
Senate Judiciary Committee and was awaiting action by the full 
Senate. The amendment in the nature of a substitute sought to conform 
H.R. 9552 technically to S. 2278; no substantive changes were made. 
It was then reported unanimously by the Subcommittee. 

On September 2, 1976, the full Committee approved H.R. 9552, as 
amended, with an amendment offered by Congresswoman Holtzman 
and accepted by the Committee. That amendment added title IX of 
Public Law 92-318 to the substantive provisions under which success- 
ful litigants could be awarded counsel fees. The Committee then 



3 Sep. Balancing the Scales of Justice: Financing Public Interest Law in America (Coun- 
cil for Public Interest Law, 1976), pp. 238, 364, D-2). 



212 



4 

ordered that a clean bill be reported to the House. U.K. 15400, the 
clean lull, was introduced on September S find approved pro forma 
by the Committee on September 9, 1976. 4 



C. SCOPE OF THE BILL 

H.R. L5460, the Civil Rights Attorney's Fees Awards Act of 1970, 
would amend Section 722 (42 U.S.C.1988) of the Revised Statutes to 
allow the award of fees in certain civil rights cases. 5 It would apply to 
actions brought under seven specific sections of the United States 
('ode/- Those provisions are: Section 1981, 1982, 1983, 1985, 1980, and 
2000d et seq. of Title 42; and Section 1081 et seq. of Title 20. See 
Appendix U for full texts. The affected sections of Title 42 generally 
prohibit denial of civil and constitutional rights in a variety of areas, 
while the referenced sections of Title 20 deal with discrimination on 
account of sex, blindness, or visual impairment in certain education 
programs and activities. 7 

More specifically, Section 1981 is frequently used to challenge em- 
ployment discrimination based on race or color. Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454 (1975). 8 Under that section the 
Supreme Court recently held that whites as well as blacks could bring 
suit alleging racially discriminatory employment practices. McDonald 

v. Santa Fe Trail Transportation Co., U.S. , 90 S. Ct. 

2574 (1970). Section 1981 has also been cited to attack exclusionary 
admissions policies at recreational facilities. Tillman v. Wheaton- 
Haven Recreation Ass n, Inc., 410 U.S. 431 (1973). Section 1982 is 
regularly used to attack discrimination in property transactions, such 
as the purchase of a home. Jones v. Alfred H. Mayer Co., 392 U.S. 409 
(1908). 9 

Section 1983 is utilized to challenge official discrimination, such as 
racial segregation imposed by law. Brown v. Board of Education, 347 
U.S. 483 (1954). It is ironic that, in the landmark Brown case chal- 
lenging school segregation, the plaintiffs could not recover their attor- 
ney's fees, despite the significance of the ruling to eliminate officially 



♦Apart from the addition of Title IX of Public Law 92-318, the only difference between 
H.R. 0.").")2 and the clean bill (H.R. 15460) are technical, not affecting the substance, made 
on advice of the House Parliamentarian and staff and legislative counsel. 

5 The hill amends the Revised Statutes rather than the United States Code because Title 
42 i< not codified, and thus is not "the law of the United States." 

8 In accordance with applicable decisions of the Supreme Court, the bill is intended to 
npplv to Jill cases pendincr on the date of enactment as well as all future cases. Bradley v. 
Richmond School Board, 416 U.S. 696 (1974). 

7 To the extent a plaintiff joins a claim under one of the statutes enumerated in H.R. 
154641 with ;i claim that does not allow attorney fees, that plaintiff, if it prevails on the 
non-fee claim, is entitled to a determination on the oUier claim for the purpose of awarding 
counsel lees. Morales v. Waives, 486 F. 2d 880 (7th Cir. 1973). In some instances, however, 
the claim with fees may involve a constitutional question which the courts are reluctant to 
resolve if the non-constittuional claim is dispositive. Hagans v. Lavine, 41o U.S. 528 
(1074). In such cases. If the claim for which fees may be awarded meets the "substan- 
tiality" test, nee Hagans v. Lavine, supra; JJnited Mine Workers v. Gibhs, 383 U.S. 715 
(1066). attorney's fees may be allowed even though the court declines to enter judgment for 
the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out 
of a "common nucleus of operative fact." United Mine ~\Yarlcers v. Gihhs, supra at 72'). 

"With respect to the relationship between Section 1981 and Title VII of the Civil 
Rieht* Act of Ute.4. the House Committee on Education and Labor has noted that "the 
remedies available to the individual under Title VII are co-extensive with the individual's 
Hebt to sue under the provisions of the Civil Rights Act of 1866. 42 U.S.C. § 1981. and 
that the two procedures augment each other and are not mutually exclusive." H.R. Rept, 
So. 92-238, p. 10 (92nd Cong. 1st Sess. 1971). That view was adopted by the Supreme 
Court in Johnson v. Railway r.rnrcs* A r/enrif, supra. 

«.\* with Section 1 and Title VIT. Section 1982 and Title VTTI of the Civil Rights 
Art of IftftS are complementary remedies, with similarities and differences in coverage 
and enforcement mechanism. See Jones v. Mayer Co., supra. 



213 



5 

imposed segregation. Section 1983 has also been employed to challenge 
unlawful official action in non-racial matters. For example, in Llarper 
v, Virginia State Board of Elections, 383 U.S. 663 (1966), indigent 
plaintiffs successfully challenged as unconstitutional the imposition 
of a poll tax in state and local elections. In Monroe v. Pape, 365 U.S. 
167 (1961), a private citizen sought damages against local officials for 
an unconstitutional search of a private residence. See also El rod v. 

Burns, U.S. — — , 96 S. Ct. 2673 (June 28, 1976) (discrimination 

on account of political affiliation in public employment) ; C Connor 
v. Donaldson, 422 U.S. 563 (1975) (terms and conditions of institu- 
tional confinement). 

Section 1985 and 1986 are used to challenge conspiracies, either 
public or private, to deprive individuals of the equal protection of the 
laws. See Griffin v. Breckenridge, 403 U.S. 88 (1971). The bill also 
covers suits brought under Title IX of Public Law 92-318, the Educa- 
tion Amendments of 1972, 20 U.S.C. 1681-1686. Title IX forbids spe- 
cific kinds of discrimination on account of sex, blindness, or visual 
impairment in certain federally assisted programs and activities re- 
lating to education. Finally H.R. 15460 would also apply to actions 
arising under Title VI of the Civil Eights Act of 1964, 42 U.S.C. 
2000d-2000d-6. 10 

Title VI prohibits the discriminatory use of Federal funds, requir- 
ing recipients to administer such assistance without regard to race, 
color, or national origin. Lau v. Nichols, 414 U.S. 563 (1974) ; Hills 

v. Gautreaux, U.S. , 96 S. Ct. 1538 (April 20, 1976) ; Adams 

v. Richardson, 480 F. 2d 1159 (D.C. Cir. 1973) ; Bossier Parish School 
Board v. Lemon, 370 F. 2d 847 (5th Cir.), cert, denied, 388 U.S. 911 
(1967) ; Laufman v. Oakley Building and Loan Co., 408 F. Supp. 489 
(S.D.Ohio 1976). 

D. DESCRIPTION OF H.R. 15460 

As noted earlier, the United States Code presently contains over fifty 
provisions for the awarding of attorney fees in particular cases. They 
may be placed generally into four categories : (1) mandatory awards 
only for a prevailing plaintiff; (2) mandatory awards for any prevail- 
ing party; (3) discretionary awards for a prevailing plaintiff; and 
(4) discretionary awards for any prevailing party. Existing statutes 
allowing fees in certain civil rights cases generally fall into the fourth 
category. Keeping with that pattern, H.R. 15460 tracks the language 
of the counsel fee provisions of Titles II and VII of the Civil Rights 
Act of 1964, 11 and Section 402 of the Voting Rights Act Amendments 
of 1975. 12 The substantive section of H.R. 15460 reads as follows : 

In any action or proceeding to enforce a provision of sec- 
tions 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, 
title IX of Public Law 92-318, or title VI of the Civil Rights 
Act of 1964, the court, in its discretion, may allow the pre- 
vailing party, other than the United States, a reasonable 
attorney's fee as part of the costs. 



10 Title VI of the Civil Rights Act of 1964 is the only substantive title of that Act which 
cIops not contain a provision for attorney fees. 

» 42 U.S.C. 20O0a-3(h) (Title II) : 42 U.S.C. 2000e-5(k) (Title VII). 
J -42 U.S.C. 1973(e) (Section 402). 



214 



G 

The three key features of this attorney's fee provision are: (1) that 
awards may be made to any "prevailing party" ; (2) that fees are to be 
allowed in the discretion of the court ; and (3) that awards are to be 
"reasonable 4 ". Because other statutes follow this approach, the courts 
are familiar with these terms and in fact have reviewed, examined, 
and interpreted them at some length. 

/. Pn vailing party 

Under H.K. 15400, either a prevailing plaintiff or a prevailing 
defendant is eligible to receive an award of fees. Congress has not 
always been that generous. In about two-thirds of the existing statutes, 
such as the Clayton Act and the Packers and Stockyards Act, only 
prevailing plaintiffs may recover their counsel fees. 13 This bill follows 
the more modest approach of other civil rights acts. 

It should be noted that when the Justice Department testified in 
support of H.R. 9552. the precedessor to H.R. 15460, it suggested an 
amendment to allow recovery only to prevailing plaintiffs. Assistant 
Attorney General Lee thought the phrase "prevailing party 7 ' might 
have a "chilling effect" on civil rights plaintiffs, discouraging them 
from initiating law suits. The Committee was very concerned with 
the potential impact such a phrase might have on persons seeking to 
vindicate these important rights under Federal law. In light of existing 
case law under similar provisions, however, the Committee concluded 
that the application of current standards to this bill will significantly 
reduce the potentially adverse affect on the victims of unlawful conduct 
who seek to assert their federal claims. 

On two occasions, the Supreme Court has addressed the question of 
the proper standard for allowing fees in civil rights cases. In Newman 
v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per cu- 
riam), a case involving racial discrimination in a place of public ac- 
commodation, the Court held that a prevailing plaintiff "should ordi- 
narily recover an attorney's fee unless special circumstances would 
render such an award unjust/' 

Five years later, the Court applied the same standard to the attor- 
nev's fee provision contained in Section 718 of the Emergency School 
Aid Act of 1072, 20 U.S.C. 1617. Northcross v. Memphis Board of Edu- 
cation, 412 U.S. 427 (1973) (per curiam). The rationale of the rule 
rests upon the recognition that nearly all plaintiffs in these suits are 
disadvantaged persons who are the victims of unlawful discrimination 
or unconstitutional conduct. It would be unfair to impose upon them 
the additional burden of counsel fees when they seek to invoke the 
jurisdiction of the federal courts. "If successful plaintiffs w T ere rou- 
tinely forced to bear their own attorneys' fees, few aggrieved parties 
would be in a position to advance the public interest by invoking the 
injunctive powers of the federal courts." Newman v. Piggie Park En- 
ie rn rises, [nr.. supra at 402. 

Consistent with this rationale, the courts have developed a different 
standard for awarding fees to prevailing defendants because they do 
"not appear before the court cloaked in a mantle of public interest." 
United States Steel Corp. v. United States. 519 F.2d 359, 364 (3rd 
Cir. 1075). As noted earlier such litigants may, in proper circum- 

»1S D.S.C. 13 (Clayton Act) : 7 O.S.C 210(f) (Packers and Stockyards Act). 



215 



7 

stances, recover their counsel fees under H.K. 15460. To avoid the po- 
tential "chilling effect" noted by the Justice Department and to ad- 
vance the public interest articulated by the Supreme Court, however, 
the courts have developed another test for awarding fees to prevailing 
defendants. Under the case law, such an award may be made only if 
the action is vexatious and frivolous, or if the plaintiff has instituted 
it solely "to harass or embarrass" the defendant. United States Steel 
Corp. v. United States, supra at 364. If the plaintiff is "motivated by 
malice and vindictiveness," then the court may award counsel fees to 
the prevailing defendant. Carrion v. Yeshiva University, 535 F.2d 
722 (2d Cir. 1976). Thus if the action is not brought in bad faith, such 
fees should not be allowed. See, Wright v. Stone Container Corp. 524 
F.2d 1058 (8th Cir. 1975) ; see also Richardson v. Hotel Corp of Amer- 
ica, 332 F. Supp. 519 (E.D.La. 1971), aff'd without published opin- 
ion. 468 F.24 951 (5th Cir. 1972) . This standard will not deter plaintiffs 
from seeking relief under these statutes, and yet will prevent their 
being used for clearly unwarranted harassment purposes. 

With respect to the awarding of fees to prevailing defendants, it 
should further be noted that governmental officials are frequently 
the defendants in cases brought under the statutes covered by H.E. 
15460. See, e.g. , Brown v. Board of Education, supra : Gautreanx v. 
Hills, supra; O'Connor v. Donaldson, supra. Such governmental enti- 
ties and officials have substantial resources available to them through 
funds in the common treasury, including the taxes paid by the plain- 
tiffs themseh'es. Applying the same standard of recovery to such de- 
fendants would further widen the gap between citizens and govern- 
ment officials and would exacerbate the inequality of litigating 
strength. The greater resources available to governments provide an 
-ample base from which fees can be awarded to the prevailing plaintiff 
in suits against governmental officials or entities. 14 

The phrase "prevailing party" is not intended to be limited to the 
victor only after entry of a final judgment following a full trial on 
the merits. It would al>o include a litigant who succeeds even li the 
case is concluded prior to a full evidentiary hearing before a judge 
or jury. If the litigation terminates by consent decree, for example, 
it would be proper to award counsel fees. Incarcerated Men of Allen 
County v. Fair. 507 F.2d 281 (6th Cir. 1974) ; Parker v. Matthews, 
411 F. Supp. 1059 (D.D.C. 1976) : Aspira of New York. Inc., v. Board 
of Education of the City of New York, 65 F.R.D. 541 (S.D.X.Y. 
1975). A "prevailing" party should not be penalized for seeking an 
out-of-court settlement, thus helping to lessen docket congestion. 
Similarly, after a complaint is filed, a defendant might voluntarily 
•cease the unlawful practice. A court should still award fees even 
though it might conclude, as a matter of equity, that no formal relief, 
such as an injunction, is needed. E.g.. Parham v. Southwestern Bell 
Telephone Co., 433 F.2d 421 (8th Cir. 1970) : Brown v. Gaston Count}/ 
Dyeing Machine Co.. 457 F.2d 1377 (4th Cir.). cert denied, 409 U.S. 
"982 (1972) : see also Lea v. Cone Mills Corp.. 438 F.2d 86 (4th Cir. 
1971) : Ever* v. Dwyer, 358 U.S. 202 (1958). 

A prevailing defendant may also recover its fees when the plaintiff 
seeks and obtains a voluntary dismissal of a groundess complaint, 

14 Of course, the 11th Amendment is not a bar to the awarding of counsel fees against 
state governments. Fitzpatrick v. Bitzer, U.S. -, 96 S.Ct. 2666 (June 28, 1976), 



216 



8 

Corcoran v. Columbia Broqdoasth\g System, 121 F.iM 575 (9th Cir. 
r.Ml). as long as the other factors, noted earlier, governing awards 
to defendants are met. Finally the courts have also awarded counsel 
fees to a plaintiff who successfully concludes a class action suit even 
though that individual was not granted any relief. Parhamx. South- 
wist, rn Bi II Teh phone Co.. supra; Reed v. Arlington Hotel Co.. Inc., 
476 F.2d 721 (8fch Cir. 1973). 

Furthermore, the word "prevailing" is not intended to require the 
entry of a -final order before fees may be recovered. "A district court 
must have discretion to award fees and costs incident, to the final dis- 
position of interim matter-." Bradley V. Richmond School Boavd, 416 
l .S. 696, 72:5 (1974) ; see also Mills v. Electric Auto-Lite Co.. 396 
U.S. 375 (1970). Such awards pendente lite are particularly important 
in protracted litigation, where it is difficult to predicate with any 
certainty the date upon which a final order will be entered. While 
the courts have not yet formulated precise standards as to the appro- 
priate circumstances under which such interim awards should be made, 
the Supreme Court has suggested some guidelines. "(T)he entry of 
any order that determines substantial rights of the parties may be 
an appropriate occasion upon which to consider the propriety of an 
award of counsel fees. . . Bradley v. Richmond School Board, supra 
at 722 n. 28. 

2. Judicial discretion 

The second key feature of the bill is its mandate that fees are only 
to be allowed in the discretion of the court. Congress has passed many 
statutes requiring that fees be awarded to a prevailing party. 13 Again 
the Committee adopted a more moderate approach here by leaving the 
matter to the discretion of the judge, guided of course by the case 
Jaw interpreting similar attorney's fee provisions. This approach was 
supported by the Justice Department on Dec. 31, 1975. The Committee 
intends that, at a minimum, existing judicial standards, to which ample 
reference is made in this report, should guide the courts in construing 
H.Pv. 15460. 

3. Reasonable fees 

The third principal element of the bill is that the prevailing party 
is entitled to "reasonable'' counsel fees. The courts have enumerated a 
number of factors in determining the reasonableness of awards under 
similarly worded attorney's fee provisions. In Johnson v. Georgia 
Highway Express* Inc.. 488 F.2d 714 (5th Cir. 1974), for example, the 
court listed twelve factors to be considered, including the time and 
labor required, the novelty and difficulty of the questions involved, the 
skill needed to present the case, the customary fee for similar work, 
and the amount received in damages, if any. Accord : Evans v. Shera- 
ton Pari- llotrh 503 F.2d 177 (D.C. Cir. 1974) ; see also United States 
Steel Corp. v. United States, supra. 

Of course, it should be noted that the mere recovery of damages 
should not preclude the awarding of counsel fees. 10 Under the anti- 



"E.cr.. 7 T'.S.r. 400o(b) (Perishable Agricultural Commodities Art) : 15 U.S.C. 1640(a) 
(Truth-in-Lcndins Art) : 46 T'.S.C. 1277 (Merchant Marine Act of 1936) ; 47 U.S.C. 206 
(Communications Act of 1934)-. 

M Similarly, a prevailing party is entitled to counsel fees even if represented by an orga- 
nization or if the partv is itself an organization. Incarcerated Men of Allen Count" v. Fair, 

nupra; Torre* v. Kach*. RO F.R.D. 343 (S.D.X.V. 1075), aff'd. F.2d (2d Cir., 

June 25. 1076) : Fairley v. Patterson, 493 F2d 508 (5th Cir. 1074). 



217 



9 

trust laws, for example, a plaintiff may recover treble damages and 
still the court is required to award attorney fees. The same principle 
should apply here as civil rights plaintiffs should not be singled out 
for different and less favorable treatment. Furthermore, while dam- 
ages are theoretically available under the statutes covered by H.R. 
15460, it should be observed that, in some cases, immunity doctrines 
and special defenses, available only to public officials, preclude or se- 
verely limit the damage remedy. 17 Consequently awarding counsel fees 
to prevailing plaintiffs in such litigation is particularly important and 
necessary if Federal civil and constitutional rights are to be adequate- 
ly protected. To be sure, in a large number of cases brought under the 
provisions covered by H.R. 15460, only injunctive relief is sought, and 
prevailing plaintiffs should ordinarily recover their counsel fees. 
Newman v. Piggie Park Enterprises. Inc., supra; Northeross v. Mem- 
phis Board of Education, supra. 

The application of these standards will insure that reasonable fees 
are awarded to attract competent counsel in cases involving civil and 
constitutional rights, while avoiding windfalls to attorneys. The 
effect of H.R. 15460 will be to promote the enforcement of the Fed- 
eral civil rights acts, as Congress intended, and to achieve uniformity 
in those statutes and justice for all citizens. 

Oversight 

Oversight of the administration of justice in the federal court 
system is the responsibility of the Committee on the Judiciary. The 
hearings on October 6 and 8 and Dec. 3. 1975, focused on specific 
pending legislation. However, they did have an oversight purpose, as 
well, since the impact of the Supreme Court's AlyesJca decision on 
the public and the related issue of equal access to the courts were 
subjects of the hearing. 

Commute Vote 

H.R. 15460 was reported favorably by a voice vote of the Com- 
mittee on September 9, 1976. Twenty-seven members of the Commit- 
tee were present. 

Statement of the Committe ox Government Operations 

Xo statement has been received on the legislation from the House 
Committee on Government Operations. 

Statement of the Concessional Budget Office 

Pursuant to clause 7. rule XIII of the Rules of the House of Rep- 
resentatives and section 403 of the Congressional Budget Act of 1974. 
the Committee estimates there will be no cost to the federal government. 



17 Wood v. Strickland, 420 U.S. 308 (1975) ; Scheuer v. Rhodes, 416 U.S. 232 (1974) ; 
Pier son v. Ray, 386 U.S. 547 (1967). 



218 



10 

( \ INGRESS ( >F THE Un [TED STATES, 

Congressional Budget Office. 
Washington. D.C.. September 7. 1976. 

Hon. Peter YY. Rodino, 

t r hmrm<in. Committee, on the Judiciary, U.S. House of Representatives, 
Raybum H<nt*< Office Building. Washington* D.C 

Dear Mr. Chairman : Pursuant to Section 403 of the Congressional 
Budget Act of 1074. the Congressional Budget Office has reviewed the 
Civil Rights Attorney's Fees Award Act of 1976, a bill to award 
attorney'- fees to prevailing parties in civil rights snits to enforce 
Section's 11)77. 1978, 1970. 1980 and 19S1 of the Revised Statutes, 
Title IX of P.L. 92-318 or Title VI of the Civil Rights Act of 1964. 

Based on this review, it appears that no additional cost to the gov- 
ernment would be incurred as a result of enactment of this bill. 
Sincerely. 

Alice M.Rivlin, 

Director. 

Inflationary. Impact Statement 

The legislation will have no foreseeable inflationary impact on prices 
or costs in the operation of the national economy. 

S ection -by- Section A n a lysis 

Section 1 

Section 1 merely recites the short title of the legislation, "The Civil 
Rights Attorney's Fees Awards Act of 1976 v . 

Section t 

Section 2 amends section 722 (42 U.S.O. 1988) of the Revised Stat- 
utes by adding at the end of that section the following language: 

In any action or proceeding to enforce a provision of sec- 
tions 1977. 1978. 1979. 1980. 1981 of the Revised Statutes, 
title IX of Public Law 92-318, or title VI of the Civil Rights 
Act of 1964. the court, in its discretion, may allow the prevail- 
ig party, other than the United States, a reasonable attorney's 
fee as part of the costs. 

Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3 of rule XIII of the Rules of the House 
of Representatives, changes in existing law made by the bill, as re- 
ported, are shown as follows (new matter is printed in italic, existing 
law in which no change is proposed is shown in roman) : 

SECTION 722 OF THE REVISED STATUTES 

Sec. 722. The jurisdiction in civil and criminal matters conferred on 
the district and circuit courts by the provisions of this Title, and of 
Title "Civil Rights," and of Title "Crimes." for the protection of all 
persons in the United States in their civil rights, and for their vindi- 



219 



11 

cation, shall be exercised and enforced in conformity with the laws of 
the United States, so far as such laws are suitable to carry the same 
into effect; but in all cases where they are not adapted to the object, 
or are deficient in the provisions necessary to furnish suitable remedies 
and punish offenses against law, the common law, as modified and 
changed by the constitution and statutes of the State wherein the court 
having jurisdiction of such civil or criminal cause is held, so far as the 
same is not inconsistent with the Constitution and laws of the United 
States, shall be extended to and govern the said courts in the trial and 
disposition of the cause, and, if it is of a criminal nature, in the inflic- 
tion of punishment on the party found guilty. In any action or pro- 
ceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 
1981 of the Revised Statutes, title IX of Public Law 92-818, or title 
VI of the Civil Rights Act of 196 %, the court, in its discretion, may al- 
low the prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs. 



220 



A.PPENDJX A' 



FEDERAL STAT1 TES AUTHORIZING THE AWARD OF ATTORNEY FEES 

1. Federal Contested Election Act. 2 U.S.C. 396. 

2. Freedom of Information Act. 5 U.S.C. 552(a)(4)(E). 
;;. Privacy Act, 5 U.S.C. 552a(g) (3) (B). 

L Federal Employment Compensation For "Work Injuries, 5 U.S.C. 
SI 27. 

:,. Packers and Stockyards Act, 7 U.S.C. 210(f). 

0. Perishable Agricultural Commodities Act. 7 U.S.C. 499g (b), (c). 

7. Agricultural Unfair Trade Practices Act, T U.S.C. 2305 (a), (c). 

8. Phi tit Variety Act , 7 U.S.C. 2565. 

9. Bankruptcy Act. 11 U.S.C. 104(a) (1). 

10. Railroad Reorganization Act of 1935, 11 U.S.C. 205(c) (12). 

11. Corporate Reorganization Act, 11 U.S.C. 041. 642. 643, and (>44. 

12. Federal Credit Union Act, 12 U.S.C. 1786(0). 

13. Bank Holding Company Act, 12 U.S.C. 1975. 

14. Clayton Act. 15 U.S.C, 15. 

L5. Unfair Competition Act (FTC) . 15 U.S.C. 72. 

16. Securities Act of 1933, 15 U.S.C. 77k(e) . 

17. Trust Indenture Act, 15 U.S.C. 77 www (a) . 

15. Securities Exchange Act of 1934, 15 U.S.C. T8i(e), 78r(a). 

19. Jewelers Hall-Mark Act, 15 U.S.C. 298 (b), (c) and (d). 

20. Truth-in-Lending Act (Fair Credit Billing Amendments). 15 
U.S.C. 1640(a). 

21. Fair Credit Reporting Act, 15 U.S.C. 1681(n). 

22. Motor Vehicle Information and Cost Savings Act. 15 U.S.C. 
1918(a), 1989(a)(2). 

23. Consumer Product Safety Act, 15 U.S.C. 2072, 2073. 

24. Federal Trade Improvements Act (Amendments), 15 U.S.C. 
2310(a) (5) (d)(2). 

25. Copyright Act, 17 U.S.C. 1116. 

26. Organized Crime Control Act of 1970. 18 U.S.C. 1964(c). 

27. Education Amendments of 1972, 20 U.S.C. 1617. 

28. Mexican American Treaty Act of 1950, 22 U.S.C, 277d-21. 

29. International Claim Settlement Act, 22 U.S.C. 1623(f). 

30. Federal Tort Claim Act, 28 U.S.C. 2678. 

31. Norris-LaGuardia Act. 29 U.S.C. 107. 

32. Fair Labor Standards Act, 29 U.S.C. 216(b). 

33. Employees Retirement Income Security Act. 29 U.S.C. 1132(g). 

34. Labor Management Reporting and Disclosure Act, 29 U.S.C. 
131(c). 501(b). 

35. Longshoremen and Harbor Workers Compensation Act. 33 
U.S.C. 998. 



1 This list is compiled from information submitted to the Subcommittee by the Council 
for Public Interest La wand the Attorneys' Fee Project of the Lawyers' Committee for 
Civil Rights Under Law. 

(13) 



221 



14 

36. Water Pollution Prevention and Control Act, 33 U.S.C. 
1365(d). 

37. Ocean Dumping Act, 33 U.S.C. 1415(g) (4). 

38. Deepwater Ports Act of 1974, 33 U.S.C. 1515. 

39. Patent Infringement Act, 35 U.S.C. 285. 

40. Servicemen's Group Life Insurance Act. 38 U.S.C. 784(g). 

41. Servicemen's Readjustment Act, 38 U.S.C. 1822(b). 

42. Veterans Benefit Act, 38 U.S.C. 3404(c). 

43. Safe Drinking Water Act, 42 U.S.C. 300j-8(d). 

44. Social Security Act (Amendments of 1965), 42 U.S.C. 406(b). 

45. Clean Air Act (Amendments of 1970), 42 U.S.C. 1857h-2. 

46. Civil Eights Act of 1964, Title II, 42 U.S.C. 2000a-3(b). 

47. Civil Eights Act of 1964, Title VII, 42 U.S.C. 2000e-5(k). 

48. Legal Services Corporation Act, 42 I r .S.C. 2996e(f). 

49. Fair Housing Act of 1968, 42 U.S.C. 3612(c). 

50. Noise Control Act of 1972, 42 U.S.C. 4911 (d) . 

51. Railway Labor Act, 45 U.S.C. 153 (p) . 

52. Merchant Marine Act of 1936, 46 U.S.C. 1227. 

53. Communications Act of 1934, 47 U.S.C. 206. 

54. Interstate Commerce Act, 49 U.S.C. 8, 16(2). 908(b), 908(e), 
and 1017(b)(2). 



222 



Appendix B 

STATUTES QOVEREE <>!< AMENDED BY U.K. 104(30 

l. Revised Statutes § 1977 (42U.S.p.§ 1981). 
§ 1981. Equal rights under the law 

All persons within the jurisdiction of the United States shall have 
(he same right in every State and Territory to make and enforce con- 
tracts, to sue, be parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of every kind, and to no 
other. 

U.S. § li>TT. 

± Revised Statutes § 1978 (42 U.S.C. § 1982). 
§ 1982. Property rights of citizens 

All citizens of the United States shall have the same right, in even- 
State and Territory, as is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell, hold, and convey real and personal property. 
U.S. § 1978. 

:). Revised Statutes § 1979 (42 U.S.C. § 1983). 
§ 1983. Civil action for deprivation of rights 

Every person who. under color of any statute, ordinance, regulation, 
custom, oi' usage, of any State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, or other proper pro- 
ceeding for redress. 
R.S. S 1979. 

4. Revised Statutes § 1980 (42 U.S.C. g 1985). 

§ 1985. Conspiracy to interfere with civil rights — Preventing offi- 
cer from performing duties 

(1) If two or more persons in any State or Territory conspire to 
prevent, by force, intimidation, or threat, any person from accepting 
or holding any office, trust, or place of confidence under the United 
States, or from discharging any duties thereof; or to induce by like 
means any officer of the United States to leave any State, district, or 
place, where his duties as an officer are required to be performed, or to 
injure him in his person or property on account of his lawful discharge 
of the duties of his office, or while engaged in the lawful discharge 
thereof, or to injure his property so as to molest, interrupt, hinder, or 
impede him in the discharge of his official duties; 

(15) 



223 



16 

Obstructing justice; intimidating party, witness, or juror 

(2) If two or more persons in any State or Territory conspire to 
deter, by force, intimidation, or threat, any party or witness in any 
court of the United States from attending such court, or from testi- 
fying to any matter pending therein, freely, fully, and truthfully, or 
to injure such party or witness in his person or property on account 
of his having so attended or testified, or to influence the verdict, pre- 
sentment, or indictment of any grand or petit juror in any such court, 
or to injure such juror in his person or property on account of any ver- 
dict, presentment, or indictment lawfully assented to by him, or of 
his being or having been such juror; or if two or more persons con- 
spire for the purpose of impeding, hindering, obstructing, or defeat- 
ing, in any manner, the due course of justice in any State or Territory, 
with intent to deny to any citizen the equal protection of the laws, or 
to injure him or his property for lawfully enforcing, or attempting to 
enforce, the right of any person, or class of persons, to the equal pro- 
tection of the laws; 

Depriving persons of rights or privileges 

(;>) If two of more persons in any State of Territory conspire or 
go in disguise on the highway or on the premises of another, for the 
purpose of depriving, either directly or indirectly, any person or class 
of persons of the equal protection of the laws, or of equal privileges and 
immunities under the laws; or for the purpose of preventing or hin- 
dering the constituted authorities of any State or Territory from giv- 
ing or securing to all persons within such State or Territory the equal 
protection of the laws; or if two or more persons conspire to prevent 
by force, intimidation, or threat, any citizen who is lawfully entitled 
to vote, from giving his support or advocacy in a legal manner, toward 
or in favor of the election of any lawfully qualified person as an elector 
for President or Vice President, or as a Member of Congress of the 
[Jnited States; or to injure any citizen in person or property on account 
of such support or advocacy ; in any case of conspiracy set forth in this 
section, if one or more persons engaged therein clo, or cause to be done, 
any act in furtherance of the object of such conspiracy, whereby 
another is injured in his person or property, or deprived of having and 
Exercising any right or privilege of a citizen of the United States, the 
party so injured or deprived may have an action for the recovery of 
damages, occasioned by such injury or deprivation, against any one 
of more of the conspirators. 

R.S. § 1980. 

5. Revised Statutes § 198 (42 U.S.C. § 1986) . 
§ 1986. Same ; action for neglect to prevent 

Every person who, having knowledge that any of the wrongs con- 
spired to be done, and mentioned in section 1985 of this title, are 
about to be committed, and having power to prevent or aid in prevent- 
ing the commission of the same, neglects or refuses so to do, if such 
wrongful act be committed, shall be liable to the party injured, or 
his legal representatives, for all damages caused by such wrongful 
act, which such person by reasonable diligence could have prevented ; 
and such damages may be recovered in an action on the case; and 



79-586 - 77 - 16 



224 



17 

any number of persons guilty of such wrongful neglect or refusal 
may be joined as defendants in the action; and if the death of any 
party be caused by any such wrongful act and neglect, the legal rep- 
resentatives of the deceased shall have such action therefor, and 
may recover not exceeding $5,000 damages therein, for the benefit 
of the widow of the deceased, if there be one, and if there be no 
widow, then for the benefit of the next of kin of the deceased. But 
no action under the provisions of this section shall be sustained 
which is not commenced within one year after the cause of action has 
accrued. 

R.S. §1081. 

6. Revised Statutes § 722 (42 U.S.C. § 1988). 

§ 198S. Proceedings in vindication of civil rights 

The jurisdiction in civil and criminal matters conferred on the 
district courts by the provisions of this chapter and Title 18. for the 
protection of all persons in the United States in their civil rights, 
and for their vindication, shall be exercised and enforced in con- 
formity with the laws of the United States, so far as such laws are 
suitable to carry the same into elfect; but in all cases where they 
are not adapted to the object, or are deficient in the provisions nec- 
essary to furnish suitable remedies and punish offenses against law, 
the common law, as modified and changed by the constitution and 
statutes of the State wherein the court having jurisdiction of such 
civil or criminal cause is held, so far as the same is not inconsistent 
with the Constitution and law r s of the United States, shall be ex- 
tended to and govern the said courts in the trial and disposition of 
the cause, and, if it is of a criminal nature, in the infliction of pun- 
ishment on the party found guilty. 

R.S. § 722. 

7. Title IX of Public Law 92-318 (20 U.S.C. § 1681-1686), as 
amended. 

§ 1681. Sex — Prohibition against discrimination ; exceptions 

(a) No person in the United States shall, on the basis of sex. be 
excluded from participation in, be denied the benefits of, or be sub- 
jected to discrimination under any education program or activity re- 
ceiving Federal financial assistance, except that : 

Classes of Educational Institutions Subject to Prohibition 

(1) in regard to admissions to educational institutions, this section 
shall apply only to institutions of vocational education, professional 
education, and graduate higher education, and to public institutions 
of undergraduate higher education ; 

Educational Institutions Commencing Planned Change in Admissions 

(2) in regard to admissions to educational institutions, this section 
shall not apply (A) for one year from June 23, 1972, nor for six years 
a tier June 23, 1972, in the case of an educational institution which, has 
begun the process of changing from being an institution which admits 
only students of one sex to being an institution which admits students 
of both sexes, but only if it is carrying out a plan for such a change 



225 



18 

which is approved by the Commissioner of Education or (B) for seven 
years from the date an educational institution begins the process of 
changing from being an institution which admits only students of only 
one sex to being an institution which admits students of both sexes, but 
only if it is carrying out a plan for such a change which is approved by 
the Commissioner of Education, whichever is the later ; 

Educational institutions of religious organizations with contrary 

religious tenets 

(3) this section shall not apply to an educational institution which 
is controlled by a religious organization if the application of this sub- 
section would not be consistent with the religious tenets of such 
organization; 

Educational institutions training individuals for military services or 

merchant marine 

(4) this section shall not apply to an educational institution whose 
primary purpose is the training of individuals for the military services 
of the United States, or the merchant marine ; 

Public educational institutions with traditional and continuing 

admissions policy 

(o) in regard to admissions this section shall not apply to any public 
institution of undergraduate higher education which is an institution 
that traditionally and continually from its establishment has had a 
policy of admitting only students of one sex ; and 

Social fraternities or sororities; voluntary youth service organizations 

(6) This section shall not apply to membership practices — 

(A) of a social fraternity or social sorority which is exempt 
from taxation under section 501(a) of Title 26, the active mem- 
bership of which consists primarily of students in attendance at 
an institution of higher education, or 

(B) of the Young Men's Christian Association, Young Wom- 
en's Christian Association, Girl Scouts, Boy Scouts, Camp Fire 
Girls, and voluntary youth service organizations which are so 
exempt, the membership of which has traditionally been limited 
to persons of one sex and principally to persons of less than nine- 
teen years of age. 

Preferential or disparate treatment because of imbalance in partici- 
pation or receipt of Federal benefits; statistical evidence of im- 
balance 

(b) Nothing contained in subsection (a) of this section shall be 
interpreted to require any educational institution to grant preferen- 
tial or disparate treatment to the members of one sex on account of 
an imbalance which may exist with respect to the total number or 
percentage of persons of that sex participating in or receiving the 
benefits of any federally supported program or activity, in comparison 



226 



19 

wit h the total number or percentage of persons of that sex in any com- - 1 
munity. State, section, or other area: Provided. That this subsection 
shall not be construed to prevent the consideration in any hearing 
or proceeding under this chapter of statistical evidence tending to 
show that such an imbalance exists with respect to the participation 
in, or receipt of the benefits of, any such program or activity by the 
members of one sex. 

Educational Institution Defined 

(c) For purposes of this chapter an educational institution means 
any public or private preschool, elementary, or secondary school, or 
any institution of vocational, professional, or higher education, ex- 
cept that in the case of an educational institution composed of more 
than one school, college, or department which are administratively 
separate units, such terms means each such school, college, or 
department. 

§1682. Federal administrative enforcement; report to congres- 
sional committees 

Each Federal department and agency which is empowered to ex- 
tend Federal financial assistance to any education program or activ- 
ity, by way of grant, loan, or contract other than a contract of 
insurance or guaranty, is authorized and directed to effectuate the pro- 
visions of section 1681 of this title with respect to such program or 
activity by issuing rules, regulations, or orders of general applic- 
ability which shall be consistent with achievement of the objectives 
of the statute authorizing the financial assistance in connection with 
which the action is taken. No such rule, regulation, or order shall be- 
come effective unless and until approved by the President. Compliance 
with any requirement adopted pursuant to this section may be ef- 
fected (1) by the termination of or refusal to grant or to continue 
assistance under such program or activity to any recipient as to whom 
there has been an express finding on the record, after opportunity 
for hearing, of a failure to comply with such requirement, but such 
termination or refusal shall be limited to the particular political en- 
tity, or part thereof, or other recipient as to whom such a finding has 
been made, and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found, or 
( k 2) by any other means authorized by law: Provided, however. That 
no such action shall be taken until the department or agency concerned 
has advised the appropriate person or persons of the failure to comply 
with the requirement and has determined that compliance cannot be 
secur ed by voluntary means. In the case of any action terminating, or 
refusing to grrant or continue, assistance because of failure to comply 
with a requirement imposed pursuant to this section, the head of the 
Federal department or agency shall file with the committees of the 
House and Senate having legislative jurisdiction over the program or 
activity involved a full written report of the circumstances and the 
grounds for such action. No such action shall become effective until 
thirty days have elapsed after the filing of such report. 



227 



20 

Public Law 92-318, Title IX, § 902, June 23, 1972, 86 Stat. 374. 

§ 1683. Judicial review 

Any department or agency action taken pursuant to section 1682 of 
this title shall be subject to such judicial review as may otherwise be 
provided by law for similar action taken by such department or agency 
on other grounds. In the case of action, not otherwise subject to judicial 
review, terminating or refusing to grant or to continue financial assist- 
ance upon a finding of failure to comply with any requirement im- 
posed pursuant to section 1682 of this title, any person aggrieved 
(including any State or political subdivision thereof and any agency 
of either) may obtain judicial review of such action in accordance 
with chapter 7 of Title 5, and such action shall not be deemed com- 
mitted to unreviewable agency discretion within the meaning of sec- 
tion 701 of that Title. 

Public Law 92-318, Title IX, § 903, June 23, 1972, 86 Stat. 374. 

§1684. Blindness or visual impairment; prohibition against dis- 
criminaton 

Xo person in the United States shall, on the ground of blindness or 
severely impaired vision, be denied admission in any course of study 
by a recipient of Federal financial assistance for any education pro- 
gram or activity, but nothing herein shall be construed to require any 
such institution to provide any special services to such person because 
of his blindness or visual impairment. 

Public Law 92-318, Title IX, § 904, June 23, 1972, 86 Stat. 375. 
§ 1685. Authorty under other laws unaffected 

Nothing in this chapter shall add to or detract from any existing 
authority with respect to any program or activity under which Fed- 
eral financial assistance is extended by way of a contract of insurance 
or guaranty. 

Public Law 92-318, Title IX, § 905, June 23, 1972, 86 Stat. 375. 
§ 1686. Interpretation with respect to living facilities 

Notwithstanding anything to the contrary contained in this chapter, 
nothing contained herein shall be construed to prohibit any edu- 
cational institution receiving funds under this Act, from maintaining 
separate living facilities for the different sexes. 

Public Law 92-318, Title IX, § 907, June 23, 1972, 86 Stat. 375. 

8. Title VI of the Civil Rights Act of 1964 (Publ. L. 88-352, as 
amended) , (42 0.S.C. 2000d through d-6) . 

SUBCHAPTER V. — FEDERALLY ASSISTED PROGRAMS 

§2000d. Prohibition against exclusion from participation in, de- 
nial of benefits of, and discrimination under Federally 

assisted programs on ground of race, color, or national 
origin 

Xo person in the L T nited States shall, on the ground of race, color, 
or national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance. (Pub. L. 88-352, title 
VI. § 601, July 2, 1964, 78 Stat, 252.) 



228 



21 

§ 2000d-l. Federal authority and financial assistance to programs I 
or activities by way of grant, loan, or contract other 
than contract of insurance or guaranty; rules and 
regulations; approval by President; compliance with 
requirements; reports to congressional committees; 
effective date of administrative action 

Each Federal department and agency which is empowered to extend 
Federal financial assistance to any program or activity, by way of 
grant, loan, or contract other than a eont raet of insurance or guaranty, 
is authorized and directed to effectuate the provisions of section 2000d 
of this title with respect to such program or activity by issuing rules, 
regulations, or orders of general applicability which shall be consist- 
ent with achievement of the objectives of the statute authorizing the 
financial assistance in connection with which the action is taken. No 
such rule, regulation, or order shall become effective unless and until 
approved by the President. Compliance with any requirement adopted 
pursuant to this section may be effected (1) by the termination of or 
refusal to grant or to continue assistance under such program or ac- 
tivity to any recipient as to whom there has been an express finding 
on the record, after opportunity for hearing, of a failure to comply 
with such requirement, but such termination or refusal shall be limited 
to the particular political entity, or part thereof, or other recipient as 
to whom such a finding has been made and, shall be limited in its 
effect to the particular program, or part thereof, in which such non- 
compliance has been so found, or (2) by any other means authorized 
by law: Prodded, however, That no such action shall be taken until 
the department or agency concerned has advised the appropriate per- 
son or persons of the failure to comply with the requirement and has 
determined that compliance cannot be secured by voluntary means. In 
the case of any action terminating, or refusing to grant or continue, 
assistance because of failure to comply with a requirement imposed 
pursuant to this section, the head of the Federal department or agency , 
shall file with the committees of the House and Senate having legisla- i 
tive jurisdiction over the program or activity involved a full written 
report of the circumstances and the grounds for such action. No such ; 
action shall become effective until thirty days have elapsed after the 
filing of such report. (Pub. L. 88-352, title VI, § 602, July 2, 1004, 
78 Stat. 252.) 

§ 2000d-2. Judicial review ; Administrative Procedure Act. 

Any department or agency action taken pursuant to section 2000d-l 
of this title shall be subject to such judicial review as may otherwise be 
provided by law for similar action taken by such department or agency 
on other grounds. In the case of action, not otherwise subject to judi- 
cial review, terminating or refusing to grant or to continue financial 
assistance upon a finding of failure to comply with any requirement im- 
posed pursuant to section 2000(1-1 of this title, any person aggrieved 
( including any State or political subdivision thereof and any agency of 
either) may obtain judicial review of such action in accordance with 
section 1009 of Title 5, and such action shall not be deemed committed 
to unreviewable agency discretion within the meaning of that section. 
( Pub. L. 88-352 title VI, § 603, July 2, 1964, 78 Stat. 253.) 



229 



22 

§2000d-3. Construction of provisions not to authorize adminis- 
trative action with respect to employment practices 
except where primary objective of Federal financial 
assistance is to provide employment 

Nothing contained in this subchapter shall be construed to authorize 
action under this subchapter by any department or agency with respect 
to any employment practice of any employer, employment agency or 
labor organization except where a primary objective of the Federal 
financial assistance is to provide employment. (Pub. L. 88-352, title 
VI, § 604. July 2, 1964, 78 Stat. 253.) 

§ 2000d-4. Federal authority and financial assistance to programs 
or activities by way of contract of insurance or 
guaranty 

Nothing in this subchapter shall add to or detract from any existing 
authority with respect to any program or activity under which Federal 
financial assistance ds extended by way of a contract of insurance or 
guaranty. (Pub. L. 88-352, title VI, § 605, July 2, 1964, 78 Stat. 253.) 

§ 2000--5. Prohibited deferral of action on applications by local 
educational agencies seeking federal funds for alleged 
noncompliance with Civil Rights Act. 

The Commissioner of Education shall not defer action or order ac- 
tion or order action deferred on any application by a local educational 
agency for funds authorized to be appropriated by this Act, by the 
Elementary and Secondary Education Act of 1965. bv the Act of Sep- 
tember 30, 1950 (Public Law 874, Eighty-first Congress), by the Act 
of September 23, 1950 (Public Law 815, Eighty-first Congress), or by 
the Cooperative Research Act, on the basis of alleged noncompliance 
with the provisions of this subchapter for more than sixty days after 
notice is given to such local agency of such deferral unless such local 
agency is given the opportunity for a hearing as provided in section 
2000d-l of this title, such hearing to be held within sixty days of such 
notice, unless the time for such hearing is extended by mutual consent 
of such local agency and the commissioner, and such deferral shall not 
continue for more than thirty days after the close of any such hearing 
unless there has been an express finding on the record of such hearing 
that such local educational agency has failed to comply with the pro- 
visions of this subchapter: Provided* That, for the purpose of de- 
termining whether a local educational agency is in compliance with 
this subchapter, compliance by such agency with a final order or judg- 
ment of a Federal court for the desegregation of the school or school 
system operated by such agency shall be deemed to be in compliance 
with this subchapter, insofar as the matters covered in the order or 
judgment are concerned. (Pub. L. 89-750, title I, § 182, Nov. 3, 1966, 
80 Stat. 1209; Pub. L. 90-247, title I, § 112, Jan. 2, 1968, 81 Stat. 787). 

§2000d-6. Policy of United States as to application of nondis- 
crimination provisions in schools of local educational 
agencies 

(a) Declaration of uniform policy. 

It is the policy of the Linked States that guidelines and criteria 
established pursuant to title VI of the Civil Rights Act of 1964 and 



230 



23 

section 182 of the Elementary and Secondary Education Amendments 
of 1966 dealing with conditions of segregation by race, whether de jure 
or dc facto, in the schools of the local educational agencies of any State 
shall be applied uniformly in all regions of the United States what- 
ever the origin or cause of such segregation. 

(b) Nature of uniformity 

Such uniformity refers to one policy applied uniformly to de jure 
segregation wherever found and such other policy as may be provided 
pursuant to law applied uniformly to de facto segregation wherever 
found. 

(c) Prohibition of construction for diminution of obligation for 

enforcement or compliance with nondiscrimination require- 
ments 

Nothing in this section shall be construed to diminish the obligation 
of responsible officials to enforce or comply with such guidelines and 
criteria in order to eliminate discrimination in federally assisted pro- 
grams and activities as required by title VI of the Civil Rights Act 
of 1964. 

(d) Additional funds 

It is the sense of the Congress that the Department of Justice and 
the Department of Health, Education, and Welfare should request 
such additional funds as may be necessary to apply the policy set forth 
in this section throughout the United States. (Pub. L. 91-230, § 2, Apr.. 
13, 1970, 84 Stat. 121.) 



231 



House Report No. 94-1741 

Report No. 94-1741 providing for the consideration of S. 2278 
September 30, 1976. Mr. Boiling, from the Committee on Rules, sub- 
mitted the following report to accompany H. Res. 1591. The Commit- 
tee on Rules, having had under consideration H. Res. 1591, by a non- 
record vote, report the same to the House with the recommendation 
that the resolution do pass. 

[122 Cong. Rec. H11894 (daily ed. Sept. 30, 1976) ] 

Reports or Committees on Public Bills and Resolutions 

Under clause 2 of rule XIII, reports of committees were delivered to 
the Clerk for printing and reference to the proper calendar, as follows : 

Mr. Bolling. Committee on Rules, House Resolution 1591. A resolution provid- 
ing for consideration of S. 2278. A bill : The Civil Rights Attorney's Fees Awards 
Act of 1976 (Rept. No. 94-1741). Referred to the House Calendar. 

H. RES 1591 

Resolved, That immediately upon the adoption of this resolution it shall be in 
order to take from the Speaker's table the bill S. 2278, the Civil Rights Attorney's 
Fees Awards Act of 1976, and to consider said bill in the House. 



HOUSE DEBATES 



[122 Cong. Rec. H12150 (daily ed. Oct. 1, 1976) ] 

Providing tor Consideration of S. 2278, Civil Rights Attorney's 
Fees Awards Act of 1976 

Mr. Bolling. Mr. Speaker, by direction of the Committee on Rules, 
I call up House Resolution 1591 and ask for its immediate considera- 
tion. 

The Clerk read the resolution as follows : 

H. RES. 1591 

Resolved, That immediately upon the adoption of this resolution it shall be in 
order to take from the Speaker's table the bill S. 2278, the Civil Rights Attorney's 
Fees Awards Act of 1976, and to consider said bill in the House. 

The Speaker. The gentleman from Missouri (Mr. Bolling) is recog- 
nized for 1 hour. 

Mr. Bolling. Mr. Speaker, I yield 30 minutes to the gentleman from 
Illinois (Mr. Anderson), pending which I yield myself such time as 
I may consume. 

Mr. Speaker, this resolution, as those who listened to it have heard, 
makes it in order to take from the Speaker's table a Senate bill, the 
Civil Rights Attorney's Fees Awards Act of 1976, and makes it possi- 
ble to consider and pass the bill and thus send it to the President, 

This is a bill that passed the Senate in great controversy. Its details 
will be explained by a member of the Committee on the Judiciary, who 
dealt with a similar bill which was on the Suspension Calendar but 
which was not reached. That would indicate, I believe, that the bill is 
not terribly controversial, and my understanding is that it will not be. 

At this stage, Mr. Speaker, I will reserve the balance of my time so 
that the gentleman from Illinois (Mr. Anderson) may use some time 
and then I will yield to a member of the Committee on the Judiciary to 
describe the bill in some detail. 

Mr. Anderson of Illinois. Mr. Speaker, I yield myself such time as I 
may consume. 

(Mr. Anderson of Illinois asked and was given permission to revise 
and extend his remarks.) 

(235) 



236 



Mi'. Anderson of Illinois. Mr. Speaker, House Resolution 1591 
would make il in order to take from the Speaker's table the bill S. 2278, 
the Civil Rights Attorney's Fees Awards Act of 1970, and to consider 
it in the House. Under this procedure the person calling the bill up 
from the Speaker's table will be recognized under the 1-hour rule and 
w ill control that. Following that 1 hour of debate the previous ques- 
tion will be moved and, if adopted, the House will vote on adopting 
S. 2278. 

Mr. Speaker, I appreciate that some procedural objections may be 
raised to dealing with this bill in this manner. But I think this pro- 
cedure is justified given the lateness of the session, the importance of 
this legislation in view of the Supreme Court's Alyeska decision, and 
the fact that this bill was approved by the other body on an overwhelm- 
ing vote of 57 to 15, and a nearly identical bill w T as reported by our own 
Judiciary Committee by unanimous voice vote on September 9, 1976. 

Mr. Speaker, before someone makes the charge that this bill is 
establishing some kind of precedent or opening some kind of new 
Pandora's Box, I think we should set the record straight at the out- 
set. As w T e heard in the testimony before the Rules Committee yester- 
day, there are at present over 50 provisions for the awarding of attor- 
ney fees in particular cases, now contained in the U.S. Code. These 
break dowm into four categories including mandatory awards for the 
prevailing plaintiff, mandatory awards for the prevailing party, dis- 
cretionary awards for the prevailing plaintiff and discretionary awards 
for the prevailing party. 

Existing statutes allowing fees in certain civil rights cases fall into^ 
that latter category, that is, discretionary awards to the prevailing 
party. The bill before us today simply extends to other civil rights 
cases the discretionary award already in effect w r ith respect to titles 
II and VII of the 1964 Civil Right/Act and section 402 of the 1975 
Voting Rights Act Amendments. 

In brief, this bill, like the other civil rights statutes I have cited, 
would pro- 

[H 12151] 

vide that awards may be made to any "prevailing party," 
that the fees are to be allowed in the discretion of the court, and that 
the awards are to be "reasonable". I would reiterate, there is nothing 
different in this bill from what already exists with respect to other 
civil rights cases already covered by an attorneys' fees awards provi- 
sion. The courts are familiar with these terms and they have reviewed, 
examined and interpreted them at some length. 

One final word, Mr. Speaker : the bill adopted by the other body on 
Wednesday of this week which will be before us if this rule is adopted, 
contains an additional provision not in the House bill — an amendment 
which was offered by the gentleman from Alabama (Mr. Allen). That 
additional provision allows for the awarding of attorneys' fees in cases 
brought by the IRS where the existence of a tax liability on the part of 
the defendant is found to be without merit. That amendment was 
adopted in the other body by a unanimous vote of 72 yeas. 

Mr. Speaker. T do not know of any serious amendments which any- 
one on the Judiciary Committee, or anyone else for that matter, has in 



237 



mind on this legislation. Should someone have such an amendment, 
the person controlling the time could yield for amendment if he 
wished, or the previous question could be defeated thus permitting 
the person fighting the previous question to offer an amendment. But 
it would not be necessary to alter this rule in order to accomplish that 
objective. I therefore urge adoption of this rule so that we may pro- 
ceed to the consideration of S. 2278 under the 1-hour rule. I think the 
need for this legislation is not only evident but imperative in view of 
the Alyeska decision that the courts do not have authority to award 
attorney's fees to a prevailing party unless an act of Congress expressly 
authorizes it. There is no logical reason to deny this authority to the 
courts and this hope to our citizens seeking the enforcement of their 
civil rights in some civil rights cases when that authority and hope 
already exists with respect to others. 

I realize that some procedural objections conceivably could be raised 
to dealing with this bill in the manner described by the gentleman from 
Missouri (Mr. Boiling), but I think the procedure is wholly justified 
in view of the fact that, hopefully, we are embarked now on the final 
day of this session of the Congress and in view of the intrinsic impor- 
tance of the legislation, in view of the necessity for the legislation 
because of the Supreme Court decision in the so-called Alaska pipe- 
line case, the fact that, at a filibuster, to be sure, it did have overwhelm- 
ing support in the other body and that a nearly identical bill was 
reported by our own Committee on the Judiciary by unanimous voice 
vote on September 9, 1976. I note the presence at the committee table 
on the other side of the aisle of the distinguished gentleman from 
Massachusetts who was the author of a nearly identical House bill, 
which was reported, I think unanimously or nearly unanimously, out 
of the House Committee on the Judiciary, I will not, in view of his 
presence on the floor and intention to speak, go into the details of the 
legislation other than to say that it is certainly not unprecedented 
and that the features which it embraces are contained in more than 
50 other statutory provisions now on the general statute books of the 
country. 

Mr. Speaker, I think it is wholly desirable to implement basic, fun- 
damental civil rights guarantees by making this provision a part of 
our law so that the prevailing party is entitled, at the discretion of 
the court, to reasonable attorney's fees. 

Mr. Rousselot. Mr. Speaker, will the gentleman yield? 

Mr. Axdersox of Illinois. I yield to the gentleman "from California. 

Mr. Rousselot. Is this basically, then, a closed rule ? 

Mr. Andersox of Illinois. It could be described, I suppose, in those 
terms, in view of the fact that if the resolution is adopted, then, as I 
understand it, the person who calls up the bill from the Speaker's 
table controls the time ; and he could refuse, I would assume, to yield 
for amendment. However, in view of the identically or near identical- 
ly of the House bill and the Senate bill, and in view of the fact that 
there was ample testimony before the House Committee on the Judi- 
ciary and, I feel, ample testimony before the House Committee on 
Rules yesterday on the substantive features of the legislation, as well 
as the procedural aspects of this legislation, I do not think that the 
House is being foreclosed from exercising any rights that it ought to 
have. 



238 



Mr. Rousselot. Mr. Speaker, if the gentleman will yield further, 
the gentleman realizes, of course, that this bill has never formally come 
before the House. 

The Committee on the Judiciary had hearings, I understand; but 
in talking to members of the Committee on the Judiciary, I understand 
it was passed by voice vote. However, several of our colleagues from 
thai committee did not realize that it was going to come up on a voice 
vote, and on such short notice, or they would have insisted on a more 
thorough review in committee. 

My understanding is that the IRS has some reservations about it. 
I normally do not carry the mail for the IRS, but there are several very 
controversial aspects with respect to this bill. Therefore, I am sur- 
prised that my colleague, the gentleman from Illinois (Mr. Ander- 
son), who I know favors the concept of "an open rule," would have 
supported a closed rule on a bill that has such potential controversy 
contained in its written provisions. • 

I realize the hour is late. However, some of our colleagues on the 
Committee on the Judiciary, who were not there when it was raced 
through and even though there were hearings on this legislation — 
I think these same members would have liked to have had an oppor- 
tunity to offer amendments on the floor or in committee. 

Does that not disturb the gentleman from. Illinois? 

Mr. Anderson of Illinois. Let me reply to the gentleman from Cali- 
fornia (Mr. Rousselot) by saying I appreciate the fact that normally, 
as on the recent tax bill. I am fully in favor of open rules ; but it seems 
to me that when we get into the legislative arena, we have to be prac- 
tical. We have to accept a bill in the particular time frame and context 
in which it is beinu offered. We are also in the last day of this session. 

Mr. Speaker, with respect to the question that the gentleman raises 
about the Internal Revenue Service's being disturbed, that amendment, 
of course, to the bill was offered in the Senate by Senator Allen, the 
junior Senator from the State of Alabama. It merely provides that in 
a civil action or proceeding on behalf of the United States to enforce 
a provision or charge a violation of a provision of the Internal Reve- 
nue Code, the court, in its discretion — and I emphasize "in its discre- 
tion" — may allow the prevailing party, other than the United States, 
reasonable attorney's fees. 

I read the legislative history that was developed on that Senate 
amendment as it was debated in the other body, and it is clear that 
what is contemplated bv that language is that in a suit where the Gov- 
ernment has unreasonably harassed a citizen of the United States by 
bringing a suit against him under the Internal Revenue Code, there 
should be an award of reasonable attorney's fees, in the court's 
discretion. 

I do not know whv anyone should feel any compunction about pro- 
viding that there should be an award of reasonable counsel fees in a 
case in which a man can be harassed and made a defendant by the U.S. 
Government. 

Mr. McClory. Mr. Speaker, will the gentleman yield? 

Mr. Rousselot. Mr. Speaker, will the gentleman yield? 

Mr. Anderson of Illinois. I cannot yield to both gentlemen simul- 
taneously. First I will yield briefly to the gentleman from California 
(Mr. Rousselot). 



239 



Mr. Rousselot. Mr. Speaker, I appreciate my colleague, the gentle- 
man from Illinois (Mr. Anderson), yielding further. My understand- 
ing is that there are adequate attorneys' fees already provided for in 
present law. At the bottom of page 3 in the committee report is the fol- 
lowing statement that I would like to quote : 

Since 1964, every major civil rights law passed by the Congress has included, 
or has been amended to include, one or more fee provisions. 

So this legislation is in many ways duplication of other provisions 
already in law. My question then is : Why is it so necessary to rush this 
bill through with this type of a closed rule without it having been 
presented to the full House ? 

Mr. Axdersox of Illinois. The gentleman from California has made 
his point in ample fashion. May I respond, and I do so in full, com- 
plete and total response to the allegation that the gentleman makes. It 
appears that in five of the seven provisions covered by this bill under 
which an award of reasonable attorneys' fees could be made, were 
passed prior to 1964. They actually go back to the post-civil war recon- 
struction period and two of the remaining three 

[H 12152] 

provisions that would be covered by this bill are included in bills that 
contain at least fee provisions in some other provision of the bill. 

We are talking here about major civil rights laws. We have an 
obligation, it seems to me, as the representatives of the people to make 
sure that those laws are enforced and we discharge that obligation 
when we make available a reasonable award of attorneys' fees at the 
discretion of the court. Those of us who are interested in making sure 
that those laws are enforced, and I am sure the gentleman from Cali- 
fornia wants to see them enforced just as much as I do. are simply 
abetting and aiding that process of law enforcement when we agree 
to the provisions of this bill. 

Mr. McClory. Mr. Speaker, will the gentleman yield ? 

Mr. Axdersox of Illinois. I now vield to the gentleman from Illinois 
(Mr. McClory). 

Mr. McClory. Mr. Speaker, I thank the gentleman for yielding 
to me. 

Mr. Speaker. I want to know exactly what is going to occur if we 
adopt this resolution. It is my understanding that the only thing that 
will be in order, if we adopt the resolution, is to consider the Senate 
bill S. 2278. the Civil Rights Attorneys' Fees Awards Act of 1976, as 
passed by the Senate, unless we would vote down the previous question. 

It is my understanding that the Senate bill provides for the allow- 
ance of fees to attorneys who prevail, for the plaintiff if the plaintiff 
prevails in court, or for the defendant if the defendant prevails, or 
with respect to suits which are brought involving the Internal Reve- 
nue Code, if the defendant prevails and can show that such action 
was filed in bad faith. In other words, the United States is excluded 
from any attorney's fees under anv thesis or under any hypothesis that 
we might present with regard to this legislation. 

Am I correct in my understanding? 



79-586 0—77—17 



240 



Mr. Drinan. Will the distinguished gentleman from Illinois yield? 
Mr. Anderson of Illinois. I yield to the gentleman from Massa- 
chusetts. 

.Mr. Drjnan. Mr. Speaker, I may say to the distinguished gentleman 
from Illinois that in the Allen amendment, it is only the United States 
that is involved. That if the United States brings actions on a citizen 
of this country, if they are doing it for the harassment of that defend- 
ant only, for vexatious purposes to the citizen, not to the United States, 
they might, under those unique and really impossible circumstances 
recover reasonable attorneys' fees at the discretion of the court. 

Mr. McClory. There is a prohibition against the United States re- 
covering attorneys' fees either in a civil rights case or in income tax 
matters. 

Mr. Drinan. That is pervasive in the whole United States Code. It 
seems to me this particular provision is a bit of an anomaly and goes 
only to the rare case where someone can actually assert and prove he 
was harassed by the IRS. 

Mr. Mc( 'lory. Is it proposed by the principal sponsor of this legisla- 
tion from the House Committee on the Judiciary that we should con- 
sider only the Senate bill and not vote down the previous question in 
order to amend the Senate bill ? 

Mr. Drinan. Mr. Speaker, if the gentleman from Illinois would 
yield still further, that is precisely what is proposed here and that is. 
in a certain sense we are filling in the interstices of existing law. Just 
yesterday we adopted a proposal identical with this in the general reve- 
nue sharing bill. We have adopted this in the Civil Rights Act and in 
at least 52 Federal acts. Consequently, to fill in the vacancies in these 
very important acts, we ask that this body adopt what passed the Sen- 
ate overwhelmingly the other day. 

Mr. McClory. I thank the gentleman. 

(Mr. McClory asked and was given permission to revise and extend 
his remarks.) 

Mr. Quie. Mr. Speaker, will the gentleman yield ? 

Mr. Anderson of Illinois. I yield to the gentleman from Minnesota. 

Mr. Quie. I thank the gentleman for yielding. 

I \vould like to ask the gentleman a question. In this bill presently 
a taxpayer or an individual does not have standing and cannot sue 
under title IX. The Federal Government is the only one who can sue. 
Since we do provide that the Federal Government cannot have attor- 
neys' fees paid in title IX, who. then, would receive attorneys' fees, if 
they prevail? 

Mr. Anderson of Illinois. The gentleman raised that question with 
me on the floor earlier yesterday before the hearing was conducted on 
this legislation. I specifically addressed a question on that point to the 
distinguished gentleman from Massachusetts, the author of the House 
bill, Mr. Drinan. He assured me that the concern that I believe the 
gentleman has that somehow it might be possible to substitute an in- 
dividual party for the Federal Government under suits that are 
brought under title IX would not be the import of this legislation, but 
that in those cases where under title IX the suit can only be brought 
by the Government, this does not change the law in that regard at all. 
This would not permit the substitution of an individual party plaintiff. 



241 



So in further answer to the gentleman's question, there would be no 
award of attorneys' fees to the Government in a case brought by the 
I Government. 

[H 12153] 

(Continuation of the Proceedings of the House from Part I) 



Providing for Consideration of S. 2278, Civil Rights Attorney's 
Fees Awards Act of 1976 — (Continued) 

Mr. Quie. If the gentleman would yield further, could I ask the 
gentleman from Massachusetts why title IX, then, is included, the 
same provision as in title VI, because in the Civil Rights Act we permit 
an individual to sue except under title VI, and title IX was patterned 
after title VI of the Civil Rights Act. A recent court decision held that 
an individual cannot sue under title IX. 

Mr. Anderson of Illinois. I yield to the gentleman from Massachu- 
setts for a response. 

Mr. Drinan. I thank the gentleman for yielding. 

The distinguished gentleman from Illinois has stated the case well, 
that there is no change in the substantive preexisting law in this case 
before this body at this time. We accept preexisting law, whatever it is, 
and simply state that the routine, boilerplate legal language on through 
the U.S. Code giving to the prevailing party at the discretion of the 
judge reasonable attorneys' fees shall be applied to title IX. 

Mr. Quie. I thank the gentleman. 

Mr. Bauman. Mr. Speaker, will the gentleman yield ? 

Mr. Anderson of Illinois. I yield to the gentleman from Maryland. 

Mr. Bauman. I thank the gentleman for yielding. 

Mr. Speaker, I do not think we are getting frank answers from our 
colleagues. They are not addressing themselves to the language of the 
bill they propose to bring up in this extraordinary fashion. 

Reading the first several lines, it says : 

In any action or proceeding to enforce a provision . . . 

and then it names a number of sections of title IX which are explained 
in appendix B of the House report. These are actions that, as I under- 
stand it, individual citizens can bring, and that means individuals can 
profit from such suits. It is not just the United States suing. 

Mr. Anderson of Illinois. No. If the gentleman from Maryland mis- 
understood me, I apologize. I was merely trying to make the point that 
in those instances under that title where a suit can be brought in the 
name of the Government, this provision per se would not permit the 
substitution of an individual party plaintiff. But I am not suggesting 
that where the law now provides that an individual can bring a suit, 
he would not be eligible, as this says, for reasonable attorneys' fees at 
the discretion of the court. 

Mr. Bauman. If the gentleman would yield further, it seems to me 
this bill proposes a lawyer's heyday. There will be people suing all 
over the place with the hope that the Federal Government will pay 
their legal fees. 



242 

Mr. Anderson of Illinois. Mr. Speaker, I am going to yield next to 
a member of the House Committee on the Judiciary, who wanted an 
opportunity to further explain that point. I yield to the gentleman 
from Illinois (Mr. Railsback). 

Mr. Railsback. I thank the gentleman from Illinois for yielding. 

Mr. Speaker, I would simply like to point out that, as I understand 
it, it is clearly not the intent of Congress to create a new remedy, but 
that, rather, this bill would create a remedy only in the event that the 
courts should in the future determine that an individual may sue un- 
der the. statutes. 

And the bill does not authorize or statutorily grant any private 
right of action which does not now exist. At least I feel certain that is 
our intent. I think we ought to establish that in the record. 

Mr. Drixax. Mr. Speaker, will the gentleman yield? 

Mr. Railsback. I yield to the gentleman from Massachusetts. 

Mr. Drinan. I concur completely. We do not create any new statu- 
tory right of action in the bill today. 

Mr. Baumax. Mr. Speaker, will the gentleman yield ? 

Mr. Railsback. I yield to the gentleman from Maryland. 

Mr. Baumax. But the gentleman still is avoiding the issue. Of 
course the bill does not create any new right of action but it does pro- 
vide for the Federal Gov- 

[H 12154] 

ernment to pay reasonable attorney's fees and that will only en- 
courage litigation. 

Mr. Anderson of Illinois. There are more than 50 present statutes 
which permit actions of that kind and it is only because of the court 
decision recently in the Alyeska case that it was felt now necessary to 
specify in statutory language those cases where that award would be 
made. 

Mr. Railsback. If the gentleman will yield further. I think it is 
important and vital that the House Members know that prior to the 
Alyeska case the courts were awarding reasonable attorneys' fees in 
civil rights cases in the cases where they thought it was proper. They 
did not do it where it was not proper, and it is not mandatory under 
the bill. So what we are really doing is codifying the practice that was 
going on prior to the Alyeska case. 

Mr. Anderson of Illinois, That is my understanding. 

Mr. A stibrook . Mr. Speaker, will the gentleman yield ? 

Mr. Axdersox of Illinois. I yield to the o-entleman from Ohio. 

Mr. Ashbrook. Mr. Speaker. I would like to point out what I think 
is an interesting and recurring double standard. It does not apply to 
my colleague, the gentleman from Illinois. My colleague, the gentleman 
from Illinois, pointed out the thrust of this bill was. in effect, to put 
individuals into a position of not being harassed by the Government, 
and, if they are, then at least allow them to seek redress for their 
grievances and be able to have their attornev's fees naid if they prevail. 

Goin."f back a few months, if I may. we had a similar situation re- 
garding small businesses which were beinflr harassed bv the Govern- 
ment. We pointed out in several cases under the Consumer Product 
Safety Commission such cases, and I will mention specifically the Mar- 
lin Toy Co., which was put out of business by bureaucratic overkill. 



24a 



The bureaucracy itself admitted later it was wrong. We brought up 
a bill to provide for their redress and our friends on the other side of 
the aisle said : "We cannot get into that." But in this case the crocodile 
tears are profuse. I just wanted to point that out. 

Mr. Anderson of Illinois. Mr. Speaker, I think the gentleman is 
making a good point, but in fairness to somebody on the other side of 
the aisle, the gentleman from Wisconsin (Mr. Kastenmeier) , I do 
want to relate to the Members in the House what he testified to before 
us in the Rules Committee on this bill. He said that this is a much 
broader subject really than what is encompassed in this relatively brief 
bill, and there are these problems to which the gentleman from Ohio 
has correctly referred where other citizens are being harassed by the 
Federal Government in the type of situation the gentleman outlined. 

I very much hope the House Judiciary Committee will return to 
this subject in the next Congress and do something about making it 
possible for that small businessman to whom the gentleman referred 
to get the same kind of redress if he is in fact being harassed and per- 
secuted by his own Government and unfairly subjected to litigation. 

Mr. Ashbrook. Mr. Speaker, if the gentleman will yield. I cate- 
gorically agree with him. The only difference is this House had the 
opportunity, we had the facts the Senate had the opportunity, it had 
the facts, and we had the amendments but my liberal friends voted 
them down and took them out of the bill. Now all of a sudden in lock 
step they march as fast as possible and they set aside the normal legis- 
lation rules. In this case they want to get this onto the statute books 
quickly. Not so when it comes to the harassed small businessman. 

Mr. Hyde. Mr. Speaker, will the gentleman yield ? 

Mr. Anderson of Illinois. I yield to the gentleman from Illinois 
(Mr. Hyde). 

Mr. Hyde. Mr. Speaker, one of the vices involved in having compul- 
sory arbitration is that we are delegating to nonelected officials the 
power arbitrarily to disburse tax funds when they reach agreement. 
One of the vices with this type arrangement is that we are delegating 
to a Federal judge, a nonelected person, the power to disburse tax- 
payer's funds at his discretion. 

I think some system would be preferable if we could permit a pri- 
vate bill to come before Congress, where Congress, which has a re- 
sponsibility of shepherding the tax dollars and watching the purse 
strings would have the power to review and assess in the discretion of 
Congress what a reasonable attorney's fee ought to be, if indeed one 
should be awarded. This is simply a comment. 

Now a question. 

Mr. Drinan. Mr. Speaker, will the gentleman yield ? 
Mr. Anderson of Illinois. I yield to the gentleman from Massachu- 
setts. 

Mr. Drtnan. Mr. Speaker, that is a misconception. There is not a 
single dollar of Federal money in what is being proposed here. If the 
plaintiff prevails, then the judge will give reasonable attorney's fees 
to him, not from taxpayers' money but from the defendant's money. 

Mr. Speaker, going back to what the gentleman from Maryland 
maintained, it is not true that any taxpayers' money is going to come 
from this bill. 



244 



Mr. Hyde. Mr. Speaker, if the gentleman will yield further, the 
problem is that if the suit is against the Chicago Police Department, as 
we recently had one, and damages are assessed, it is taxpayers' funds 
that arc going to pay those damages, maybe out of Federal revenue 
sharing, maybe out of local taxpayers' funds; so I do not quite concur 
with that argument. 

Mr. Speaker, my one question is this simply, is the discretion of a 
judge reviewable? If we get an activist judge who is outraged by what 
he has heard and he awards $100,000 attorneys fees, is that such an 
exercise of discretion as to be reviewable ? 

Mr. Drinan. Mr. Speaker, if the gentleman will yield further, it is 
reviewable and it has been reviewed countless times in the courts. 

Mr. Beard of Tennessee. Mr. Speaker, will the gentleman yield ? 

Mr. Anderson of Illinois. I yield to the gentleman from Tennessee. 

Mr. Beard of Tennesee. That is if the plaintiff prevails ; what if the 
defendant prevails ? 

Mr. Drinan. The prevailing party is the one to recover. 

Mr. Beard of Tennessee. Mr. Speaker, if the gentleman will yield 
further, let us say a company is being sued for violating civil rights and 
in the course of the trial it is found that the defendant did not violate 
those civil rights. The defendant has had to pay a great deal in defense 
fees or in legal fees, where does the money come from that reimburses 
him for his legal fees ? 

Mr. Anderson of Illinois. Mr. Speaker, I yield to the gentleman 
from Massachusetts (Mr. Drinan) to reply. 

Mr. Drinan. Mr. Speaker, I am glad the gentleman brought this up, 
because we did not say the prevailing plaintiff. This makes it possible 
to reach the essence of the other party. 

We brought this in, because otherwise it might chill plaintiffs and 
they would not come into it. 

In fairness, we said it was a plaintiff or a defendant. 
Mr. Beard of Tennessee. The gentleman is not answering the 
question. 

Mr. Drinan. Mr. Speaker, if the gentleman will yield further, I am 
coming to that. Adhering to the process of litigation is the very fre- 
quent phenomenon that the defendant does not have a judgment for 
damages or that the plaintiff does not have the finances necessary to 
reimburse the defendant. In that case, the defendant can take every 
legal remedy available to him to reach the essence of the plaintiff, 
whether it is an individual or a corporation. This bill will cause plain- 
tiffs to think long and hard before they bring suits that are frivolous 
or unsubstantiated. 

Mr. Anderson of Illinois. Mr. Speaker, I am informed I have only 
6 minutes. I yield to the gentleman from California (Mr. Wiggins) 
for a unanimous-consent request. 

Mr. Sneaker, I vield such time as he may consume to the gentleman 
from Mi oh iiran (Mr. Brown). ' ... 

(Mr. Brown of Michigan asked and was given permission to revise 
and extend his remarks.) 

Mr. Brown of Michigan. Mr. Sneaker, one thing that bothers me 
about the matter before us is its timing. What is the tfreat urgency for 
the oassage of this legislation at this point in time, the last day of the 
session ? 



245 



Obviously, this measure has been before the Committee on the Judi- 
ciary. It has been before the Senate some time before that. It has not 
such urgency to bring it up in the ordinary course of business. We are in 
the last day of the session. I refuse to see, and I do not think it can be 
established, the reason for these unusual proceedings of going to the 
Committee on Rules to get a rule to pass to adopt a Senate bill. It does 
not make sense. I am surprised that the members of the Committee on 
Rules, who are perfectionists with respect to the proceedings of this 
House, would want to, in effect, negate the rules that they so stren- 
uously enforce. 

[H 12155] 

Mr. Anderson of Illinois. Mr. Speaker, let me just briefly respond 
and then I am going to reserve the balance of my time. 

Mr. Speaker, the resolution before us is not unprecedented. We have 
acted on similar measures in similar fashion many times in the past. In 
more direct response to the gentleman's question, the reason we are act- 
ing this way on this, the last day, hopefully, of the session is that only 
with great difficulty was a Senate filibuster broken on this legislation. 
If it does not pass the House today, if the previous question is voted 
down, if the bill is amended, if it has to go to another conference, any 
reasonable person knows there is going to be another filibuster in the 
other body and this bill simply will not become law. I think it should. 

Mr. Brown of Michigan. If the gentleman will yield further, is not a 
filibuster contemplated by the rules of the other body? 

Mr. Anderson of Illinois. Yes, and they ought to change the rules. 

Mr. Bolling. Mr. Speaker, I yield 1 minute to the gentleman from 
Ohio (Mr. Seiberling). 

(Mr. Seiberling asked and was given permission to revise and extend 
his remarks.) 

Mr. Seiberling. Mr. Speaker, in response to my good friend from 
Ohio (Mr. Ashbrook), I would just like to point out a couple of items. 
There are already on the statute books under some of the civil rights 
laws provisions comparable to this, allowing the awarding of attor- 
neys' fees. We recently passed, and the President signed yesterday, an 
antitrust act which contains a similar provision with respect to attor- 
neys' fees in private antitrust cases, as a matter of fact, without such a 
provision, the effect of the Alyeska pipeline court decision would be to 
wipe out the "private attorneys general" concept in the enforcement of 
the antitrust laws. 

Now, certainly the laws protecting people's civil and constitutional 
rights are at least as important as are antitrust laws. All we are trying 
to do in this bill is to provide for uniform treatment so that people 
whose rights are affected will be able, if the courts so decide in their 
discretion, to get compensation for their legal expenses in meritorious 
cases, particularly in injunction cases where there is no monetary bene- 
fit to be gained by the plaintiff. 

The civil rights laws do not mean a thing unless a person has the 
ability to bring suit when necessary to enforce his rights. Without this 
bill, there will be many instances where persons whose rights have been 
violated will have no practical way of protecting themselves, because 
they have no way of paying an attorney to represent them. 



246 



Mr, A.8HBR0OK. Mr. Speaker, will the gentleman yield? 

Mr, Seiberling. I yield to the gentleman from Ohio. 

Mr. Asiibkook. I would agree basically with what the gentleman 
said, except that I would want to amend it — on the record of this 
Congress — to state that where there is a small business that has been 
harassed or put out of business by the bureaucratic agencies, this same 
concern does not seem to apply. 

Mr. Seiberling. I would be glad to join the gentleman in that kind 
of legislation if we can work it out, but that should not be used as the 
basis for blocking this meritorious bill. 

Mr. Asiibrook. I thank the gentleman. 

Mr. Bolling. Mr. Speaker, I yield 1 minute to the gentleman from 
Texas (Mr. White). 

Mr. White. Mr. Speaker, I want to ask one question. As I under- 
stand it, the apparent language in this bill states that any party would 
receive attorneys fees at the discretion of the court. If the defendant 
prevails, then apparently by this language he could be awarded at- 
torneys fees. 

However, according to the House of Representatives report on the 
original bill out of the House, apparently there is a body of law, court 
decisions, that qualifies this ability to receive attorneys fees. 

Does this act we are attempting to pass now supersede the court 
decisions. In other words, would the defendant get an equal opportu- 
nity to receive attorneys fees, or is the defendant who prevails going to 
be limited as to whether or not there is a suit brought maliciously or in 
harassment or with other qualifying features ? 

Mr. Drinan. If the gentleman will yield, I will state that the U.S. 
Government may not have attorney fees awarded. In other cases, it 
belongs in the proper discretion of the judge. If the suit is of a vexa- 
tious and harassing nature, the defendant obviously should be given 
his reasonable attorney fees. I think it is all carefully regulated by a 
body of law which goes back at least 50 years, and this would not be 
necessary, namely, to put through a law at all had it not been for a 
technical decision in the U.S. Supreme Court. 

Mr. White. Then there is not an equal opportunity to the defendant 
because he must go further and show vexatious or malicious motivation 
before the court would award anything to the defendant. 

Mr. Drinan. If I may answer: No, I think prevailing authority is 
intended to be limited in a discriminatory w r ay. Either the plaintiff or 
defendant, if a person prevails, then the judge may in his discretion 
give reasonable attorney fees. 

Mr. White. Regardless of previous court decision ? 

Mr. Drixax. No, not regardless. We need statutory authority to do 
this, to be able to obtain reasonable attorney fees from the plaintiff. 
If one is the plaintiff, he may get these reasonable attorney fees from 
the defendant. The U.S. Government is not involved. 

Mr. White. If a company is a defendant, the company still has 
to go through the proof required by court decisions standing now as to 
t he vexatious and vicious nature of the lawsuit, before attorneys fees 
could be awarded to a defendant ? 

Mr. Drixax. If I understand the gentleman's question, the burden 
of proof on the defendant who prevails w T ould be far less in this bill 



247 



and by statute they would acquire rights that by statute they need, and 
that they would benefit from this lawT 

Mr. Axdersox of Illinois. Mr. Speaker, I yield 3 minutes to the 
gentleman from Mississippi (Mr. Lott) . 

(Mr. Lott asked and was given permission to revise and extend his 
remarks.) 

Mr. Lott. I thank the gentleman for yielding. 

Mr. Speaker, I would like to address a question, if I could, to the 
gentleman from Missouri (Mr. Boiling) as to why this is considered 
an emergency or procedural emergency rule, I thought that the Com- 
mittee on Kules had terminated its meetings and its activities, except 
for emergency or procedural matters. I do not see how this fits into 
either category, and that is the reason way I did not attend the meeting 
when this was reported out. 

Mr. Bollixg. If the gentleman will yield, it is procedural and it is 
urgent, because the members of the Committee on Rules and the mem- 
bers of the Committee on the Judiciary felt that since this had not been 
reached in the normal course on suspension, this was the only way to 
deal with it. We were convinced by the members of the Committee on 
the Judiciary who appeared before us that there was an emergency in 
dealing with it and that to not pass the matter now would create a 
longer gap than necessary, since the Alyeska case changed the ground 
rules, and this in effect just restores them. 

Mr. Lott. Is it correct that under this resolution the bill which we 
are considering will not be amendable ? 

Mr. Bollixg. If the gentleman will yield, it would be amendable 
under the unlikely circumstances that the gentleman managing it 
yielded for amendments. 

Mr. Beard of Tennessee. Mr. Speaker, will the gentleman yield ? 

Mr. Lott. I yield to the gentleman from Tennessee (Mr. Beard). 

Mr. Beard of Tennessee. I thank the gentleman for yielding. 

Is there any retroactive nature of this piece of legislation so far as 
cases that have been filed in the last several months ? 

Mr. Axdersox of Illinois. Air. Speaker, if the gentleman will yield, 
it would apply to cases now pending, for the simple reason that if that 
were not the case, the award of fees would depend on the date that the 
case is filed. I do not think that is the basis on which a determination 
is made. To that extent, it is retroactive. Pending cases could receive an 
award of reasonable fees. 

The Speaker. The time of the gentleman from Mississippi has 
expired. 

Mr. Axdersox of Illinois. Mr. Speaker, I yield 1 additional minute 
to the gentleman from Mississippi (Mr. Lott) . 

Mr. Lott. Mr. Speaker, I do not think this is an emergency piece 
of legislation or one that should be here under any sort of procedural 
emergency. AVe have bills that have been put off, bills which have been 
pending for vears, and they 

[H 12156] 

have not been called up. For instance, what happened to the bottlers' 
franchise bill ? I do not think this is an emergency piece of legislation. 
\Ve have a civil rights bill here that is being brought up under a gag 
rule. To me, that is a curious development. 



248 



Mr. Bauman. Mr. Speaker, will the gentleman from Missouri yield? 
Mr. Rolling. I yield to the gentleman from Maryland (Mr. 
Bauman) . 

Mr. Bauman. 1 thank the gentleman for yielding. 

Mr. Speaker, the gentleman from Texas (Mr. White) has raised. T 
think, a very important point. This bill has been presented under 
unusual procedural conditions and argued for on the basis that it is 
going to assist both defendants and plaintiffs. The gentleman from 
Massachusetts (Mr. Drinan) has been less than explicit in his response 
t < > t lie question of the gentleman from Texas. 

I direct the attention of the Members to page 7 of the report, if they 
are lucky enough to have a copy. It appears to me that if we read the 
case law governing the rights of a defendant to be awarded legal fees 
in cases such as this, that the defendant has to prove malice or vindic- 
tiveness on the part of the plaintiff. When we read this case law, to- 
gether with civil rights statutes this bill covers, it would be virtually 
impossible for any defendant to ever meet this standard, because any 
plaintiff can say, "I honestly believed I had a civil rights action under 
the statute," and that would bar the defendant from getting fees. 

I think this is a plaintiffs' bill, and I think the established case law, 
taken together with the new provisions, makes it a plaintiffs' bill. 

That is all the more reason, it should be put over until next January, 
so that we can take care of not only defendants' rights, but plaintiffs' 
rights and rights of all the people of the United States. This is not the 
way to deal with legislation such as this. 

Mr. Bollixg. Mr. Speaker, I have no further request for time, and I 
move the previous question on the resolution. 

The previous question was ordered. 

The Speaker. The question is on the resolution. 

The question was taken; and the Speaker announced that the ayes 
appeared to have it. 

Mr. Bauman. Mr. Speaker, I object to the vote on the ground that a 
quorum is not present and make the point of order that a quorum is 
not present. 

The Speaker. Evidently a quorum is not present. 
The Sergeant at Arms will notify absent Members. 
The vote was taken by electronic device, and there were — yeas 262, 
nays 108, not voting 60, as follows : 

[Roll No. 8571 



YEAS— 262 



Abzug 


Bennett 


Brooks 


Addabbo 


Bergland 


Broomfield 


Alexander 


Biaggi 


Brown, Calif. 


Allen 


Biester 


Brown, Ohio 


Anderson, Calif. 


Bingham 


Broyhill 


Anderson, 111. 


Blanchard 


Buchanan 


Andrews, N.C. 


Blouin 


Burgener 


Annunzio 


Boggs 


Burke, Calif. 


Ashley 


Boland 


Burke, Mass. 


Aspin 


Boiling 


Burton, John 


AuCoin 


Bonker 


Byron 


Badillo 


Brademas 


Carney 


Beard, R.I. 


Breckinridge 


Carr 


Bedell 


Brodhead 


Chisholm 



249 



v^iausen, juod xi. 


xieistosKi 


Oberstar 


t^iay 


Hicks 


uoey 


l^ltJVtildilU 


X11111S 


kj xsnen 


Cohen 


Holtzman 


\j i\eiii 


Pnllinc Til 
V_yUlllll», All. 


T-T f\ r* f /~k TT 

xiorton 


ULLinger 


i ^ i \ » t o 1 1 1 ri 

^OildUlc 


Howard 


Doff ATT XT T 

x/atLen, in.j. 


Conlan 


Hubbard 


x^atterson, t^am. 


VjUI llcll 


Un o*1t £y,ct 

xiugnes 


Poffionn TV V 

iraLLison, in.x. 


U iilUOUIo 


Hungate 


Perkins 


L/alllGl, Ud.Il 


Hutchinson 


Pettis 


x^diiitrio, rN .«J . 


T Q V TYl Q VI 
f) d I illd.il 


Peyser 


Danielson 


Jeffords 


Pike 


Davis 


«J clll C LLC 


Pressler 


U.C Id \JtcLL AcL 


«J Ullcft, \Jts.LcX. 


Preyer 


Delaney 


j oriidn 


Price 


UGllUIIlo 


J\d!3 Ltilllllcicl 


Quie 




1*^ Q 7 ATI 

x\. a zt! ii 


Quillen 


Derrick 


XVOCll 


Railsback 


Diggs 


"IV r*cx V\c* 

lvreos 


Rangel 


Tlrrrlrl 
JJOuQ 


x\.ruegt;r 


Regula 


.L'UYYllcjj 1M . -L . 


Jjdr aiLc 


xveuss 


Drinan 


xjagomai feiiiu 


Richmond 


Duncan, Oreg. 


ijeggeLL 


xvinaicio 


Duncan, Tcnn. 


T /ill TYl Q TT 

i^eiiman 


Risenhoover 


XL/any 


x^ent 


Rodino 


H/CKnarar 


T lr»\7rl Polif 

i^ioyu, oaiii. 


Roe 


Edgar 


Long, La. 


Rogers 


Edwards, Calif. 


Long, Md. 


Roncalio 


Eilberg 


Lujan 


Rooney 


Emery 


XjUUUlilt; 


Rose 


xbilglloil 


A. T r» f ^ 1 rTTT7 


XvOScllLlld.1 


Evans, Ind. 


lvic^ioaKey 


Rostenkowski 


Fary 


McCormack 


Roush 


Fascell 


ivicuaae 


Roybal 


Fenwick 


ivicr an 


Runnels 


Findley 


McHugh 


Russo 


Fish 


McKay 


Ryan 


j? isner 


TVT/rTv"l TT Tl ATT 

lvicxviiiiiey 


Qf I ^ r\ f* YYT n l TT 

ol Lrermain 


x 100CL 


Madden 


Santini 


Florio 


Madigan 


Sarbanes 


Foley 


Maguire 


oenroeuer 


Ford, Mich. 


Mann 


Seiberling 


Ford, Tenn. 


Martin 


Sharp 


Forsythe 


Mazzoli 


Shipley 


Fraser 


Meeds 


Shriver 


Frenzel 


Melcher 


Simon 


Fuqua 


Metcalfe 


OlSK 


Gaydos 


Mezvinsky 


kSKUDlLZ 


Giaimo 


Miller, calii. 


Smith, Iowa 


Gibbons 


Miller, Ohio 


ooiarz 


Gilman 


Mineta 


Spellman 


Gonzalez 


Minish 


Spence 


Gradison 


Mitcnen, in. a. 


Staggers 


Gude 


Moakley 


Df (1 tt f /t tt T WI \ 1 1 1 n m 

otanton, j. winitiLLi 


Guyer 


Moorhead, Pa. 


C3 f" n TT f ATT TotTTDQ \T 

otanton, j aixmo v . 


TJnll Til 

jtian, in. 


Morgan 


otarK 


Hamilton 


Mosher 


bteed 


Hanley 


Murphy, 111. 


oteiger, vy is. 


Hannaford 


Murphy, N.Y. 


oLOKeS 


Harkin 


Murtha 


Stratton 


Harris 


Myers, Pa. 


Stuckey 


Hayes, Ind. 


Natcher 


Studds 


Hechler, W. Va. 


Nedzi 


Sullivan 


Heckler, Mass. 


Nolan 


Symington 


Hefner 


Xowak 


Talcott 



250 



YEAS — 262 — Continued 



Teague 


Vanik 


WOlff 


Thompson 


Wampler 


Wylie 


Tlione 


Waxman 


Yates 


Thornton 


Weaver 


Yatron 


I ra xler 


Who Ion 

\> naien 


Young, Tex. 


Ullm&p 


\\ niie 


Zablocki 


A sin Deerlin 


Wiggins 


Zeferetti 


> diiutr u dgL 


VV lloUIl, 1 ( \ . 




> a ihici v tjcii 


Vv inn 






IN Al — lUo 




Ahdnor 


ijinn 


Mollohan 


.V nihro 


Gold water 


Montgomery 


Andrews, X. Dsik. 


Goodling 


Moore 


Archer 


Grassley 


Aioorneaa, cani 


Armstrong 


Hdgedorn 


IVXOLLl 


Ashbrook 


Haley 


Myers, Ind. 


x5d.Id.llS 


Hall Tdv 

ii. mi, xex. 


ICilOlS 


Bauinan 


Hammerschmidt 


T>o ill 

i aui 


Beard, Tenn. 


Hansen 


Poage 


-r> „i l 


Harsha 


Pritchard 


rsev 111 


Henderson 


xvanuan 


Bo wen 


Hightower 


Rhodes 


Breaux 


IT r . 1 f 


Roberts 


Brinkley 


nyae 


Robinson 


Brown, Mich. 


Ichord 


Rousselot 


Burleson, Tex. 


Johnson, Colo. 


Ruppe 


Burlison, Mo. 


Johnson, Pa. 


fcaiierneia 


Butler 


Jones, Ala. 


Schneebeli 


Carter 


Jones, X.C. 


Schulze 


Cederberg 


Jones, Tenn. 


Sebelius 


Chappell 


Kasten 


Shuster 


Lidv\son, uei 


xveny 


isiKes 


Cochran 


Kemp 


feiacK 


uonins, j.ex. 


Ketchum 


G»-*-»i<-Vi Y/iV.1. 

omirn, ^>eor. 


Conable 


Kindness 


Symms 


Conlan 


Landrum 


layior, aio. 


Crane 


Latta 


layior, A.o. 


uaniei, xv. w . 


Levitas 


Treen 


Derwinski 


Lloyd, Tenn. 


Waggonner 


Devine 


Lott 


Walsh 


Dickinson 


McDonald 


Whitehurst 


Edwards, Ala. 


McEwen 


Whitten 


Erlenborn 


Mahon 


Wilson, Bob 


Flowers 


Mathis 


Winn 


Fountain 


Michel 


W T ydler 


Frey 


Milford 


Young, Fla. 




NOT VOTING— 60 




Adams 


Evms, Tenn. 


AiCLomsier 


rSdlQUS 


r ltnian 


Matsunaga 


Baucus 


T7>1 4- 

r iynt 


Meyner 


-tsurke, r la. 


Green 


Mikva 


Burton, Phillip 


Harrington 


A/fill o 

ALIUS 


Clancy 


Hawkins 


AiinR 


Conyers 


xieDert 


Aiitcnen, ivxu. 


Cotter 


Heinz 


Moffett 


Coughlin 


Hinshaw 


Moss 


Dingell 


Holland 


Neal 


Downing, Va. 


Howe 


Nix 


du Pont 


Jacobs 


O'Hara 


Esch 


Johnson, Calif. 


Passman 


Eshleman 


Karth 


Pepper 


Evans, Colo. 


Keys 


Pickle 



251 



Rees 



Steelman 
Steiger, Ariz. 



Vigorito 
Wilson, C. H. 
Wright 
Young, Alaska 
Young, Ga. 



Riegle 

Sarasin 
Scheuer 
Snyder 



Stephens 
Tsongas 
Udall 



The Clerk announced the following pairs : 

Mr. Phillip Burton with Mr. Burke of Florida. 
Mr. Matsunaga with Mr. Heinz. 
Mr. Mikva with Mr. Downing of Virginia. 
Mr. Adams with Mr. Holland. 

Mr. Mitchell of Maryland with Mr. Johnson of California. 

Mr. Evans of Colorado with Mrs. Meyner. 

Mr. Harrington with Mr. Clancy. 

Mr. Hebert with Mr. McCollister. 

Mr. Hawkins with Mr. Eshleman. 

Mrs. Mink with Mr. Udall. 

Mr. Moss with Mr. Esch. 

Mr. Xeal with Mr. Mills. 

Mr. Young of Georgia with Mr. Flynt. 

Mr. Vigorito with Mr. Howe. 

Mr. Pepper with Mr. Stephens. 

Mr. Pickle with Mr. Coughlin. 

Mr. Nix with Mr. Moffett. 

Mr. Cotter with Mr. Riegle. 

Mr. Dingell with Mr. Evins of Tennessee. 

Mr. Fithian with Mr. Passman. 

Mr. Tsongas with Mr. O'Hara. 

Mr. Wright with Mr. Scheuer. 

Mrs. Keys with Mr. du Pont. 

Mr. Jacobs with Mr. Steelman. 

Mr. Baucus with Mr. Sarasin. 

Mr. Baldus with Mr. Karth. 

Mr. Conyers with Mr. Rees. 

Mr. Green with Mr. Charles H. Wilson of California. 

Mr. Sikes and Mr. Fountain changed their vote from "yea" to 
lay." 

Mr. Vander Jagt changed his vote from "nay" to "yea." 
So the resolution was agreed to. 

The result of the vote was announced as above recorded. 
A motion to reconsider was laid on the table. 



Civil Eights Attorney's Fees Award Act of 1975 

Mr. Drinan. Mr. Speaker, pursuant to the rule I call up the bill 
(S. 2278) The Civil Rights Attorney's Fees Awards Act of 1975, and 
ask for its immediate consideration in the House. 

The Clerk read the title of the bill. 

Mr. Drinan. Mr. Speaker, I ask unanimous consent to consider the 
bill as read and printed in the Record. 

Mr. Bauman. Mr. Speaker, reserving the right to object. 

The Speaker pro tempore. The gentleman from Massachusetts is 
recognized for 1 hour. 

Mr. Bauman. Mr. Speaker, again I reserve the right to object. 

The Speaker pro tempore. There was no request properly pending 
until I made that statement. 



[H 12158] 



252 



The gentleman from Massachusetts is recognized for 1 hour. 

Mr. I )kixax. Mr. Speaker, this bill is similar to the bill H.R. 15460. 
which was reported out of the Judiciary Committee by voice vote on 
Septeml>er 9. 1976. 

Mr. Hu man. Mr. Speaker. I make a point of order. Does not the 
Constitution of the United States require the reading of legislation 
before us I 

[H 12159] 

The Speaker pro tempore. The bill is read by title. 
Mr. Batman. I thank the Speaker. 

The Speaker pro tempore. The gentleman from Massachusetts has 
been recognized for 1 hour. 

Mr. Drenan. Mr. Speaker, this bill identical to H.R. 15460. which 
was reported out of the Judiciary Committee by voice vote on Septem- 
ber 9. 1976 — 27 members of the committee were present. The only dif- 
ference between the two bills is the Allen amendment, adopted by the 
Senate unanimously — 79 to — on Tuesday, which I will discuss later. 
With the approval of the minority, the House bill had been placed on 
the suspension calendar for consideration on Tuesday. September 21. 
Unfortunately the House did not reach the bill because a number of 
suspensions had been carried over from the previous day. 

Regarding the substance of the bill, let me begin by noting that the 
United States Code presently contains over 50 provisions which allow 
the awarding of attorney fees to prevailing parties. They span a wide 
range of subjects : perishable agricultural commodities, securities trans- 
actions, copyright — which we approved once again yesterday — anti- 
trust, corporate reorganizations, and many other topics. I have a list of 
those statutory provisions which I am inserting in the Record at the 
conclusion of these remarks. 

With respect to civil rights. Congress has provided for the award 
of a reasonable attorney's fee in recent statutes, such as the Federal 
Fair Housing Act of 1968 and the Voting Rights Act Amendments of 
1975. In addition this week the House approved two conference re- 
ports on bills which have attorney fee provisions in their nondiscrimi- 
nation sections : the LEAA authorization bill and the measure to 
extend the general revenue sharing program. 

The purpose of S. 2278 — and its House counterpart. H.R. 15460 — is 
to authorize the award of a reasonable attorney's fee in actions brought 
in State or Federal courts, under certain civil rights statutes, which 
are presently contained in title 42 and title 20 of the United States 
Code. By permitting fees to be recovered under those statutes, we seek 
to make uniform the rule that a prevailing party, in a civil rights 
case, may, in the discretion of the court, recover counsel fees. 

The Civil Rights Attorney's Fee Awards Act of 1976, S. 2278 
(H.R. 1.5460) is intended to restore to the courts the authority to award 
reasonable counsel fees to the prevailing party in cases initiated under 
certain civil rights acts. The legislation is necessitated by the decision 
of the Supreme Court in Alveska Pipeline Service Corp. against 
Wilderness Society, 421 U.S. 240 (1975). In Alveska. the Court held 
that attorney fees should not ordinarily be awarded to a prevailing 
party unless expressly authorized by Act of Congress. 



253 



Prior to the Alyeska decision, the lower Federal courts had regu- 
larly awarded counsel fees to the prevailing party in a variety of 
cases instituted under the sections of the United States Code covered 
by S. 2278. Even though no express provision of law authorized such 
awards, the courts reasoned that, in these civil rights cases, the private 
plaintiff, in effect, acted as a "private attorney general" advancing 
the rights of the public at large, and not merely some narrow parochial 
interest. The Alyeska decision ended that practice, which this bill 
seeks to restore. 

This bill would authorize State and Federal courts to award counsel 
fees in actions brought under specified sections of the United States 
Code relating to civil and constitutional rights. As I indicated earlier, 
over 50 Federal statutes presently provide for the awarding of fees 
in a wide variety of circumstances. In the past few years. Congress 
has approved such allowances in the areas of antitrust, equal credit, 
freedom of information, voting rights, and consumer product safety. 

The attorney fee provision of this bill would apply to actions insti- 
tuted under sections 1981, 1982, 1983, 1985, 1986. and 2000d of title 42. 
sections 1681-1686 of title 20. and the Internal Revenue Code. These 
sections generally prohibit the denial of civil and constitutional rights 
in a variety of areas, including contractual relationships, property 
transactions, and federally assisted programs and activities. It should 
be emphasized that S. 2278 would not make any substantive changes 
in these statutory provisions. Whatever is presently allowed or for- 
bidden under them would continue to be permitted or proscribed. 

Let me describe briefly the scope of the covered statutes. Section 
1981 is frequently used to challenge discrimination in employment 
and recreational facilities. Under this section, the Supreme Court re- 
cently held that whites as well as non-whites could bring suit alleging 
discriminatory employment practices. Section 1982 prohibits dis- 
crimination in property transactions, including the purchase of a 
home. Both these sections afford victims of housing and employment 
discrimination remedies supplementary to title VII — employment — 
of the 1964 Civil Rights Act. and title VIII— housing— of the 1968 
Civil Rights Act. 

Section 1983 protects civil and constitutional rights from abridge- 
ment by state and local officials. The landmark case of Brown against 
Board of Education was initiated under this provision. Ironically, 
because that section does not authorize counsel fees, the plaintiffs in 
Brown could not have recovered their attorney fees, despite the im- 
portance of the decision in eliminating officially imposed racial segre- 
gation. Under applicable judicial decisions. Section 1983 authorizes 
suits against State and local officials based upon Federal statutory as 
well as constitutional rights. For example. Blue against Craig, 505 
F.2d 830 (4th Cir. 1974). The closely related Sections 1985 and 1986 
are employed to challenge conspiracies, both public and private, to de- 
prive individuals of the equal protection of the laws : 

The bill also covers any action, including suits by individuals, insti- 
tuted under title IX of the Education Amendments of 1972. and title 
VI of the Civil Rights Act of 1964. These titles forbid the discrimi- 
natory use of Federal funds, and requires recipients to use such monies 
in a nondiscriminatory fashion. Title VI is a general prohibition which 



254 



applies to all federally assisted programs or activities, but is limited 
to discrimination on account of race, color, or national origin. Title 
IX covers certain education programs and proscribes discrimination 
based on sex. blindness, or visual impairment. 

The only difference between S. 2278 and H.R. 15460 is the result of I 
an amendment offered by Senator Allen and adopted unanimously 
by the Senate. Because the bills are identical, with the limited excep- 
tion of the Allen amendment, it is intended that the courts will inter- 
pret S. 2278 in accordance with House Report Xo. 94—1558, together 
with the Senate report and the debates in both Houses. 

The Allen amendment would allow the prevailing party to recover 
its counsel fees in any civil action brought by the United States to 
enforce the Internal Revenue Code. It would not apply to actions 
instituted against the Government by the taxpayer. Since S. 2278 
does not allow the U.S. Government to recover its fees under any cir- 
cumstances, the effect of the Allen amendment is to permit prevailing 
defendants in such cases to recover their attorney fees if they satisfy 
the criteria generally applicable under the bill to prevailing defend- 
ants, which I will discuss later at greater length. 

Briefly, under settled judicial standards, prevailing defendants 
would recover their attorney fees only if they could prove that the 
United States brought the action to harass them, or if the suit is 
frivolous and vexatious. During the hearings last fall conducted by 
the Kastenmeier subcommittee on various attorney fee bills, the rep- 
resentative of the Justice Department testified that these were the 
only circumstances when he believed prevailing defendants should 
recover their fees in Government initiated suits. 

I should note that the Allen amendment might involve an expense 
to the United States. However since awards of counsel fees under that 
amendment would occur only in the special circumstances I have 
described, it is fair to say that the total costs to the Government for 
fiscal }-ear 1977 would be negligible. 

The language of S. 2278 tracks the wording of attorney fee provi- 
sions in other civil rights statutes, such as section 706 (k) of title VII — 
employment — of the Civil Rights Act of 1964. The phraseology em- 
ployed has been reviewed, examined, and interpreted by the courts, 
which have developed standards for its application. The language 
contains three key features : first, that it applies to any "prevailing 
party." whether a plaintiff or defendant ; second, that it gives the 
court discretion to award fees; and third, that it permits only a 
•"reasonable" fee to be imposed. 

First, I wish to discuss the scope of the phrase "prevailing party." 
Under S. 2278. either the plaintiff or the defendant is eligible to receive 
attorney fees. Congress is not always that generous. About two-thirds 
of the statutes which provide 

[H 12160] 

counsel fees allow them only to the prevailing plaintiff. This bill takes 
the more modest approach of other civil rights statutes, allowing fees 
to any prevailing party. 

There is a real danger, however, that allowing fees to any prevail- 
ing party might have a "chilling effect" on civil rights plaintiffs. Vic- 



255 



tims of discrimination may be reluctant to initiate legal action to pro- 
tect their rights for fear that they may be required to pay the counsel 
fees of the defendant. To guard against this possible deterrent, the 
courts have developed a dual standard for awarding fees. 

On two occasions, the Supreme Court has held that, where counsel 
fees are authorized in civil rights cases, a prevailing plaintiff should 
ordinarily recover his other attorney fees unless special circumstances 
would render such an award unjust. The Court adopted this view 
based on the important public interest served by the elimination of 
racial discrimination and the securing of other constitutional rights, 
matters which Congress has determined to be of the highest 
importance. 

Of course, in proper cases, prevailing defendants may recover their 
counsel fees. To avoid the "chilling effect" which such fees might have 
on victims bringing suit, the courts have designed a different stand- 
ard for awarding fees to prevailing defendants. Under the case law. 
such an award may be made only if the action is vexatious and friv- 
olous, or if the plaintiff instituted it solely to harass the defendant. In 
Carrion versus Yeshiva University, for example, the Second Circuit 
Court of Appeals awarded the defendant attorney fees because the 
litigation was "motivated by malice and vindictiveness." 

Second, I should note that the bill commits the award of fees to 
the discretion of the court. Congress has passed many statutes require 
ing that fees be awarded. Again this bill takes a more moderate 
approach, leaving the award to the discretion of the court guided by 
:he case law. 

Third, the bill permits the recovery only of a "reasonable" attorney 
fee. Here too the courts have identified a number of factors to deter- 
mine the reasonableness of awards. In Johnson versus Georgia High- 
way Express, for example, the court enumerated 12 factors to be con- 
sidered, including the time and labor required, the novelty and diffi- 
culty of the questions, the skill needed to present the case, the customary 
fee for similar work, and the amount received in damages, if any. 
These evolving standards should provide sufficient guidance to the 
^ourts in construing this bill which uses the same term. I should add 
j hat the phrase "attorney's fee" would include the values of the legal 
Services provided by counsel, including all incidental and necessary 
expenses incurred in furnishing effective and competent repre- 
sentation. 

The question has been raised whether allowing fees against State 
I governments in suits properly brought under the covered statutes 
would violate the 11th amendment. That amendment limits the power 
)f the Federal courts to entertain actions against a State. This issue 
s no longer seriously in dispute after the recent Supreme Court 
: lecision in Fitzpatrick against Bitzer. Since this bill is enacted pur- 
suant to the power of Congress under section 2 of the 13th amend- 
j nent and section 5 of the 14th amendment, any question arising under 
!;he 11th amendment is resolved in favor of awarding fees against 
I State defendants. 

I should add also that, as the gentleman from Illinois (Mr. Ander- 
son) observed during consideration of the resolution on S. 2278, this 
1 )ill would apply to cases pending on the date of enactment. It is the 
settled rule that a change in statutory law is to be applied to cases 



79-586 - 77 - 18 



256 

in litigation. In Bradley versus Richmond School Board, the Supreme 
Court expressly applied that long-standing rule to an attorney fee J 
provision, including the award of fees for services rendered prior 
to the effective 1 date of the statute. 

Finally it should be noted that civil rights attorneys and organiza--! 
tions have lost thousands of dollars in fees since the Alyeska decision, ij 
That case has greatly impaired citizen enforcement of the statutes 
covered by S. 2278. If Federal laws providing for the protection of 
civil and constitutional rights are to be fully enforced, Congress 
must provide effective remedies for the vindication of those guarantees. 
Authorizing the award of reasonable counsel fees is an important tool jj 
for effectuating that purpose. 

I include the following : 

Appendix 1 — Federal Statutes Authorizing the Award of Attorney Fees 

1. Federal Contested Election Act, 2 U.S.C. 396. 

2. Freedom of Information Act, 5 U.S.C. 552(a) (4) (E). 

3. Privacy Act, 5 U.S.C. 552a (g) (3) (B). 

4. Federal Employment Compensation For Work Injuries, 5 U.S.C. 8127. 

5. Packers and Stockyards Act, 7 U.S.C. 210(f). 

6. Perishable Agricultural Commodities Act, 7 U.S.C. 499g (b), (c). 

7. Agricultural Unfair Trade Practices Act, 7 U.S.C. 2305 (a), (c). 

8. Plant Variety Act, 7 U.S.C. 2565. 

9. Bankruptcy Act, 11 U.S.C. 104(a) (1). 

10. Railroad Reorganization Act of 1935, 11 U.S.C. 205(c) (12). 

11. Corporate Reorganization Act, 11 U.S.C. 641, 642, 643, and 644. 

12. Federal Credit Union Act, 12 U.S.C. 1786(0). 

13. Bank Holding Company Act, 12 U.S.C. 1975. 

14. Clayton Act, 15 U.S.C. 15. 

15. Unfair Competition Act (FTC), 15 U.S.C. 72. 

16. Securities Act of 1933, 15 U.S.C. 77k (e). 

17. Trust Indenture Act, 15 U.S.C. 77www (a). 

18. Securities Exchange Act of 1934, 15 U.S.C. 78i(e), 78r(a). 

19. Jewelers Hail-Mark Act, 15 U.S.C. 298 (b), (c), and (d). 

20. Truth-in-Lending Act (Fair Credit Billing Amendments), 15 U.S.C.1640(a). 

21. Fair Credit Reporting Act, 15 U.S.C. 1681 (n). 

22. Motor Vehicle Information and Cost Savings Act, 15 U.S.C. 1918(a), 
1989(a) (2). 

23. Consumer Product Safety Act, 15 U.S.C. 2072, 2073. 

24. Federal Trade Improvements Act (Amendments), 15 U.S.C. 2310(a)(5) 
(d)(2). 

25. Copyright Act, 17 U.S.C. 1116. 

26. Organized Crime Control Act of 1970, 18 U.S.C. 1964(c). 

27. Education amendments of 1972, 20 U.S.C. 1617. 

28. Mexican American Treaty Act of 1950. 22 U.S.C. 277d-21. 

29. International Claim Settlement Act, 22 U.S.C. 1623(f). 

30. Federal Tort Claims Act, 28 U.S.C. 2678. 

31. Norris-LaGuardia Act, 29 U.S.C. 107. 

32. Fair Labor Standards Act, 29 U.S.C. 216(b). 

33. Employees Retirement Income Security Act, 29 U.S.C. 1132(g). 

34. Labor Management Reporting and Disclosure Act, 29 U.S.C. 431(c), 501(b). 

35. Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. 928. 

36. Water Pollution Prevention and Control Act, 33 U.S.C. 1365(d). 

37. Ocean Dumping Act. 33 U.S.C. 1415(g) (4). 

38. Deepwater Ports Act of 1974, 33 U.S.C. 1515. 

39. Patent Infringement Act, 35 U.S.C. 285. 

40. Servicemen's Group Life Insurance Act, 38 U.S.C. 784(g). 



1 This list is compiled from information submitted to the Judiciary Subcommittee by 
the Council for Public Interest Law and the Attorneys' Fee Project of the Lawyers' Com- 
mittee for Civil Rights Under Law. . 



257 



41. Servicemen's Readjustment Act, 38 U.S.C. 1822(b). 

42. Veterans Benefit Act, 38 U.S.C. 3404(c). 

43. Safe Drinking Water Act, 42 U.S.C. 300j-8(d). 

44. Social Security Act (Amendments of 1965), 42 U.S.C. 406(b). 

45. Clean Air Act (Amendments of 1970) , 42 U.S.C. 1857h-2. 

46. Voting Rights Act Amendments of 1975, 42 U.S.C. 19731 (e) . 

47. Civil Rights Act of 1964, Title II, 42 U.S.C. 2000a-3(b). 

48. Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e-5(k). 

49. Legal Services Corporation Act, 42 U.S.C. 2996e(f ). 

50. Fair Housing Act of 1968, 42 U.S.C. 3612 (c) . 

51. Noise Control Act of 1972, 42 U.S.C. 4911(d). 

52. Railway Labor Act, 45 U.S.C. 153 (p). 

53. Merchant Marine Act of 1936, 46 U.S.C. 1227. 

54. Communications Act of 1934, 47 U.S.C. 206. 

55. Interstate Commerce Act, 49 U.S.C. 8, 16(2), 908(b), 908(e), and 1017(b) 
(2). 

In the Alyeska decision the court held that attorneys' fees should 
not ordinarily be awarded to a prevailing party, unless expressly au- 
thorized by act of Congress. 

Mr. White. Mr. Speaker, will the gentleman yield ? 

Mr. Drinan. I yield to the gentleman from Texas (Mr. White). 

Mr. White. Mr. Speaker, I want to clear up some colloquy made 
earlier during the rule debate. The gentleman from Massachusetts has 
made an interesting point, that previous to the Alyeska case, the courts 
were awarding attorneys' fees to the prevailing side, but by reason of 
that case the courts have said they must have statutory authority prior 
to awarding attorneys' fees to either prevailing party. 

Mr. Drinan. The gentleman has stated the case very precisely. 

Mr. White. Mr. Speaker, if the gentleman will yield further, in this 
case the bill suggests awarding attorneys' fees to the prevailing side, 
but on further 

[H 12161] 

examination it would appear that the courts under this bill, if it be- 
comes law, could award attorneys' fees to a plaintiff regardless of mo- 
tivation in bringing a suit ; but as to the defendant, the courts would 
have to have proof that the action brought by the plaintiff was vexa- 
tious or malicious in nature before being able in its discretion to award 
attorneys' fees. 

Mr. Drinan. Any plaintiff who brings a suit merely to harass, or a 
suit which is clearly vexatious or malicious, will be denied counsel 
fees. 

This bill is not intended, nor are the other 52 similar provisions in 
Federal law, to encourage groundless and frivolous litigation or to al- 
low lawyers or litigants or their clients to recover unjustly from a 
defendant. 

In such cases, a defendant can recover when a suit brought against 
him is vexatious, malicious, and unsubstantiated. 

Mr. White. Mr. Speaker, if the gentleman will yield further, in 
order to balance out the opportunities to defendants to be accorded 
the opportunity for awarding of attorneys' fees, inasmuch as the gen- 
tleman controls the time and will control the time throughout the day 
and, therefore, can yield for purposes of amendment, I wonder if the 
gentleman would consider yielding at an appropriate time for an 
amendment to add at the end of the bill prior to the words, "amend 



258 

the title to read," there can be an award without respect to motivation 
in filing the action or proceeding, so that the defendant would not have 
to prove the vexatious or malicious nature of the suit filed ; in other 
words, to have an opportunity for discretionary attorneys' fees. 

Mr. Drixax. Mr. Speaker, I appreciate the situation the gentleman, 
describes. But in this case the rule? require that I yield for debate only ; 
we have taken from the table a bill passed by the Senate, S. 2278, and 
we must contain debate within those contours. But let me assure the 
gentleman that in the subcommittee from which this bill emerged, 
chaired by the gentleman from Wisconsin (Mr. Kastenmeier) , we have 
continuously had hearings on the very serious problem the gentleman 
raises. I hope that early in the next session we will have an omnibus 
bill for the situation described. That bill might provide that, when 
a person is sued and where the nature or justice requires, such person 
could get adequate counsel fees. 

Mr. Railsback. Mr. Speaker, will the gentleman yield ? 

Mr. Drixax. I yield to the gentleman from Illinois. 

Mr. Railsback. Mr. Speaker, I would like to simply say to my friend 
from Texas that it is my understanding that when this matter came up 
over in the Senate, the Senator from Alabama was most concerned. In 
fact, I think the Senator even conducted something in the nature of a 
filibuster until the Senator was able to get the language that we see 
in the bill before us. 

I would say to the gentleman that if the Senator from Alabama, who 
was so concerned about it, is satisfied with the language. I would hope 
the gentleman would also be satisfied. 

Mr. White. Mr. Speaker, if the gentleman will yield further, I feel 
hearings next year would be helpful. We know many actions today are 
brought in the nature of harassment or blackmail, but are difficult to 
be proved. 

Mr. Railsback. Mr. Speaker, if the gentleman will yield so I could 
respond, I would say to the gentleman that in the language of the bill 
itself nowhere is it required by that language that the prevailing de- 
fendant proves vexatious action or harassment or intimidation. 

In other words, I think maybe the gentleman's concerns may be un- 
founded. But, as I said before. I think it is very significant that the 
Senator from Alabama, who is so concerned about this, agrees that this 
language is acceptable to him. 

Mr. White. I am sure we all hope to be able to discuss this further. 

Mr. Drixax. Mr. Speaker. I continue to yield to the distinguished 
gentleman from Illinois (Mr. Railsback) for the purpose of debate 
only. 

Mr. Railsback. Mr. Speaker, I rise in support of S. 2278 which is 
designed to allow the court, in its discretion, to award reasonable at- 
torney fees to prevailing parties — other than the United States — in 
suits to enforce the Civil Rights Acts which Congress has enacted since 
1866. 

Mr. Speaker, in the United States, the prevailing party in a law 
suit is ordinarily not entitled to collect a reasonable attorneys' fee from 
the loser. This is known as the American rule. At common law. attor- 
neys fees were not allowed. For centuries, in England, however, there 
has been statutory authorization to award costs and attorneys' fees. 



259 



In the United States, Congress has provided, over the years, more 
I than 50 provisions for attorneys' fees in a wide variety of statutes. With 
regard to civil rights cases, the Congress has, in the more recent stat- 
utes, provided for an award of attorneys' fee and the purpose of this 
' bill is to make an award of attorneys' fee possible in all civil rights 
; cases. 

Prior to 1975, the Federal courts, as a narrow exception to the 
"American rule," were allowing attorneys' fees on the theory that civil 
rights plaintiffs act as "private attorneys general" in eliminating dis- 
criminatory practices which affect all citizens. This vindicates a policy 
that Congress considered very important and of high priority. 
However, the Supreme Court reversed this practice in 1975, in Alyeska 
Pipeline Service Corp. v. Wilderness Society, 421 U.S. £40. In that 
case, the Court held that Federal courts do not have the power to 
award attorneys fees to a prevailing party, unless an act of Congress 
expressly authorizes it. Although the Alyeska case involved only 
[ environmental concerns the decision banned attorneys' fees awards 
I in a wide range of cases, including rights. This legislation only directs 
itself to the civil rights cases. 

Mr. Speaker, in considering S. 2278 for passage today, I have been 
[alerted to several legal issues which were not raised at hearings held 
by the Senate and House committees. Not wishing to establish any 
legal precedents by implication, I would like to make several points 
explicitly clear with respect to the intent of this bill. 

I have been informed by the Committee on Education and Labor 
as well as several education associations that under title VI of the Civil 
Rights Act and title IX of the Education Amendments of 1972 there 
jexists a serious question as to whether an individual complainant or 
class of complainants has the right to sue as a private plaintiff. To 
date the Department of Health, Education, and Welfare has been the 
[prime enforcer of these titles and to the case of Cannon against Uni- 
versity of Chicago, the Seventh Circuit U.S. Court of Appeals stated 
(that Congress gave the right of action to HEW and not to private 
individuals. 

It has been brought to my attention that by granting attorneys' 
fees to prevailing parties other than the United States, Congress might 
implicitly authorize a private right of action under title VI and title 
IX. This is not the intent of Congress. This bill merely creates a 
remedy in the event the courts determine that an individual may sue 
under these statutes. This bill does not authorize or statutorily grant 
my private right of action which does not now exist. 

Second, it has been brought to my attention that under title VII of 
the Civil Rights Act of 1964, it has been determined that prevailing 
barties are entitled to attorneys' fees. This title was created for the 
purpose of remedying illegal discrimination based on race, religion, 
ex, and national origin. In the past several years section 1981 of the 
pivil Rights Act of 1866 has been used quite extensively to obtain 
jemedies against illegal race discrimination. 

| To date, however, attorneys' fees have not been allowed under section 
[981. It is not the intent of Congress nor is it the intent of this statute 

encourage persons to sue directly under section 1981 rather than 

1 .sing the services provided by the Equal Employment Opportunity 



260 



Commission under title VII of the Civil Rights Act. Congress has j 
established the EEOC to remedy individual complaints as well as I 
patterns and practices of illegal discrimination and has authorized 
the Commission to sue on behalf of the plaintiffs. Hut the enactment 
of this statute Congress does not intend to create any new rights under - 
section 1981 other than the possible remedy of attorneys' fees for the 
prevailing party. 

Mr. Drinan. Mr. Speaker, I yield to the gentleman from Wisconsin 
( Mr. Kastenmeier ) for the purpose of debate only. 

Mr. Kastenmeier. Mr. Speaker, I thank the gentleman from 
Massachusetts for yielding to me. I commend him for his efforts in 
managing the Senate bill. 

This legislation, Mr. Speaker, which passed the Senate yesterday, is 
similar to a House bill (H.R. 15460), which was reported favorable by 
the committee on the Judiciary September 15 of this year. That partic- 
ular bill was cosponsored by all members of the subcommittee, in- 

[H 12162] 

eluding minority members, the gentleman from Illinois (Mr. 
Railsback) and the gentleman from California (Mr. Wiggins). That 
bill, H.R. 15460, was scheduled to be on the suspension calendar on 
September 21, but the House only reached 14 matters scheduled for 
that day and did not reach this bill. 

The Senate bill differs from the House bill in only one respect. It I 
allows the recovery of attorneys' fees to prevailing defendants in cases j 
brought by the United States under the Internal Revenue Code. It 
allows the court in its discretion to make such awards, when the I 
United States has acted in bad faith, for purposes of harassment, or 
vexatiously or frivolously. It is expected that the cost to the Federal 
Government will be negligible. 

The original bill, S. 2278, and its companion House bill, H.R. 15460, ' 
related to civil rights laws only and were strongly supported by the 
Justice Department in the hearings before the subcommittee. At that 
time, as a matter of fact, Mr. Rex Lee, Assistant Attorney General of 
the Civil Division, expressed the support of the Justice Department 
for statutory authorization to allow provisions for prevailing plaintiffs 
to be awarded attorneys' fees in civil rights cases. I emphasize I 
"prevailing plaintiffs." S. 2278 will accomplish this and will also allow 
the courts to award fees to prevailing defendants, as well. When j 
defendants prevail in cases brought under the civil rights laws, the 
courts have interpreted that their recovery may be possible, in the j 
discretion of the court, only in cases where the plaintiffs have acted I 
in bad faith with frivolous, vexatious or harassing lawsuits. 

It is not suggested in the text of the bill, but the House should be 
aware of the fact that that is the way the courts have been interpreting 
the standards, the guidelines for recovery when the prevailing party J 
is the defendant. We intend that standard to continue in order to avoid J] 
a chilling effect on plaintiffs seeking to insure their civil and constitu- 
tional rights. 

The Allen amendment in the Senate bill specifically allows recovery 
against the Federal Government in certain taxpayer's suits under the 
same prevailing defendant standard enunciated above. 



261 



Mr. Battman. Mr. Speaker, will the gentleman yield on that point ? 

Mr. Drinax. Mr. Speaker, I will be happy to yield now for the 
purpose of debate only to the gentleman from Minnesota, assuming 
the gentleman from Wisconsin has finished. 

Mr. Kastexmeier. Mr. Speaker, I have not finished my speech. 

Mr. Batjmax. Mr. Speaker, will the gentleman yield for a question ? 

Mr. Drinax. No. I have yielded to the gentleman from Wisconsin. 

CALL OF THE HOUSE 

Mr. Batjmax. Mr. Speaker, I make the point of order that a quorum 
is not present. 

The Speaker pro tempore. Evidently a quorum is not present. 
Without objection, a call of the House was ordered. 
There was no objection. 

The call was taken by electronic device, and the following Members 



failed to respond : 






[Roll No. 858] 




Adams 


Goodling 


Neal 


Addabbo 


Green 


Nix 


Awbro 


Hall, 111. 


O'Hara 


Andrews, N.C. 


Harrington 


O'Neill 


Armstrong 


Harsha 


Passman 


Ashley 


Hubert 


Pepper 


Baldus 


Hefner 


Pickle 


Beard, Tenn. 


Heinz 


Pike 


Blouin 


Hillis 


Pressler 


Boggs 


Hinsbaw 


Randall 


Bonker 


Holland 


Rees 


Broomfield 


Horton 


Rhodes 


Brown Mich. 


Howe 


Riegle 


Burke Fla. 


Ichord 


Risenhoover 


Burton, Pbillip 


Jacobs 


Ryan 


B vron 


J a T"rrm n 


Santini 


Ca rnpv 


.TftTrrmon Colo 


Sarasin 


Cederberg 


Jones, N.C. 


Scheuer 


Clancy 


Karth 


Schneebeli 


Clausen, Don H. 


Keys 


Shipley 


Clay 


LaFalce 


Shuster 


Cleveland 


Landrum 


Snyder 


Conyers 


Lloyd, Calif. 


Spellman 


Cotter 


McCloskey 


Stanton, J. William 


Coughlin 


McCollister 


Stanton, James V. 


D'Amours 


McDonald 


Stark 


Derrick 


Madigan 


Steed 


Dickinson 


Mathis 


Steelman 


Diggs 


Matsunaga 


Steiger, Ariz. 


Dingell 


Meeds 


Stephens 


Downing, Va. 


Melcher 


Stuckey 


du Pont 


Meyner 


Teague 


Emery 


Michel 


Thompson 


Erlenborn 


Mikva 


Tsongas 


Escb 


Milford 


Udall 


Esbleman 


Mills 


Vander Jagt 


Evans, Colo. 


Mink 


Vigorito 


Evins, Tenn. 


Mitchell, Md. 


Wilson, C. H. 


Flowers 


Moffett 


Wilson, Tex. 


Flynt 


Montgomery 


Wright 


Forsythe 


Moorhead, Pa. 


Young, Ga. 


Frey 


Moss 




Goldwater 


Murphy, N.Y. 





262 

The Speaker. On this rollcall 303 Members have recorded their 
presence by electronic device, a quorum. 

By unanimous consent, further proceedings under the call were 
dispensed with. 

CrVTL RIGHTS ATTORNEYS' FEES AWARDS ACT 

The Speaker. The gentleman from Massachusetts (Mr. Drinan) is 
recognized. 

Mr, Drinan. Mr. Speaker, I am happy to yield to the gentleman 
from Wisconsin (Mr. Kastenmeier) and to the gentleman from Mary- 
land (Mr. Bauman) to continue their discussion. 

Mr. Bauman. Mr. Speaker, will the gentleman yield ? 

Mr. Kastenmeier. I yield to the gentleman from Maryland. 

Mr. Bauman. I thank the gentleman for yielding. 

The gentleman from Wisconsin in his usual erudite and very ade- 
quate manner was describing the situation in which a prevailing party 
could recover. I believe he had just said that the case law taken to- 
gether with the pending legislation as applied to a prevailing defend- 
ant would prevent defendants from recovering costs for attorneys 
fees, unless the action that was brought was vexatious and frivolous 
or to harass or embarrass. Is that a correct estimate of the law, taken 
together with this pending bill ? 

Mr. Kastenmeier. I will say to the gentleman that is a correct 
statement, but I would also say, as background to that, that this has 
been consistently interpreted in this fashion in recent years by the 
courts. We have not in this legislation, nor has the Senate, suggested 
any alteration of that standard. Indeed, the Department of Justice 
on January 23, 1976, after a December hearing responded that it would 
suggest as guidelines for recovery against the Federal Government by 
a prevailing defendant only those cases in which bad faith, harassment, 
or intimidation by the Government was shown. So actually, in terms of 
a defendant's opportunity for recovery of attorney's fees, this is a 
more liberal interpretation than two-thirds of the Federal law author- 
izing the awards of attorneys' fees, which provide for the award in 
the case of a prevailing plaintiff only. Therefore, this is the most 
liberal present standard presently applied in the Federal system in 
terms of where and when a defendant has an opportunity to recover, 
both in civil rights cases, and in IRS suits brought by the Federal 
Government. 

Mr. Bauman. If the gentleman would yield further. I think this 
underscores the concern that was expressed by a number of Members 
during debate on the rule, that this legislation brought to us at this 
eleventh hour is weighted heavily in favor of the plaintiffs recover- 
ing their legal fees and against defendants who may in many instances 
have a right to recover fees. It is not a defendants' bill by any means, 
and even though defendants may win cases on the merits, they may 
well be denied any recovery. It seems to me that in that case it is going 
to encourage plaintiffs' suits, and it will be almost impossible for 
defendants, even if they win. to recover anything. 

Mr. Kastenmeier. After the Alyeska case, of course, the situation is 
that a prevailing defendant would not receive an award of attorneys' 



263 



fees. At least under this particular bill, a prevailing defendant could 
be awarded attorney's fees in certain cases. Granted, the standard 
applied is different from a prevailing plaintiff, but that is and has been 
part of the development of Federal law, and that differentiation of 
I standards has not been changed by us. It would require, rather, a radi- 
cal change in concept of awards, if we were to go in that direction, and 
might present a chilling effect in civil rights cases. 
Why is there need for this legislation ? 

Prior to May 12, 1975, when the Supreme Court decided the case of 
Alyeska Pipeline Service against Wilderness Society, the courts in 
their equity powers were awarding attorney's fees to prevailing 
plaintiffs in civil rights cases and other public interest cases in which 
the parties had vindicated important rights, and had acted as "private 
attorneys general." This was one of the exceptions to the "American 
rule" that each party generally pays his or her own fees, no matter 

1 who wins the case. In the Alyeska case, the Supreme Court ruled that 
courts do not have the power to award attorney's fees to prevailing 

1 parties absent specific statutory authority. In fact, 

[H 12163] 

it noted that civil rights laws were among the areas where such awards 
would be appropriate, but where Congress must express its intention 
by authorizing those awards. S. 2278 is a direct response to the 
Alyeska case, and will close the gaps generated by it. 

The Committee on the Judiciary, and specifically the subcommittee 
which I chair, has several different attorneys' fee bills before it. We 
held 3 days of hearings, and determined, consistent with the Justice 
Department suggestion, that our initial approach to the problem would 

I be to respond with narrowly drawn legislation : such as, to authorize 

! attorney's fees in those specific situations where private enforcement of 

I civil and constitutional rights was anticipated and to be supported. 
What higher priority exists than in the civil rights area ? The Supreme 
Court itself suggested this substantive area; the Justice Department 

I supported attorney's fees in civil rights cases; several other witnesses, 
including the Civil "Rights Commission, the American Bar Associa- 
tion Special Committee on Public Interest Law, the Council on Public 
Interest Law, and other citizens have urged this amendment to civil 
rights legislation. Presently, attorney's fees are authorized in over 50 
statutes. Among them are several civil rights laws. 

The Emergency School Aid Act, titles II and VII of the Civil 
Eights Act of 1964. the equal employment opportunity amendments, 
the Voting Rights Act Amendments of 1975, the Fair Housing Act, 
and the Age Discrimination in Employment Act of 1967. This bill will 
close the gap in the civil rights area and insure equal access to the 

! courts of those persons seeking to enforce their constitutional and 
statutory rights. 
What kinds of cases will be covered if S. 2278 is enacted? 
First, The family of a veteran of the U.S. Army who could not be 

I buried in a local cemeterv because his skin was black ; 

Second. Black citizens who have been systematically kept off jury 

[ lists; 



264 

Third. A physician who participated in a program of medical assist- 
ance (o black citizens, and was therefore denied privileges in a local 
hospital : and 

Four. Mental patients who were forced into involuntary, unpaid 
labor. „ J 

There are many other noteworthy cases in which citizen access to 
the courts will be insured by passage of S. 2278. 

I was going to conclude my remarks, Mr. Speaker, by suggesting 
thai i his bill is only a beginning of our response to the Alyeska case and 
the needs of citizen access to the courts. The gentleman from Illinois 
(Mr. Crane), the gentleman from Ohio (Mr. Seiberling), the gentle- 
man from North Dakota (Mi-. Andrews), the gentleman from New- 
York (Mr. Koch), and other Members suggested a number of areas 
and approaches which I believe the next Congress will need to take up. 
We need help, I Avould say, from the administration and from the De- 
partment of Justice who could advise us with greater particularity as 
to the impact, cost, and effectiveness potentially of such legislation. So 
we should understand today that this is only a first step and a rather 
limited and cautious one. It does not overturn law or practice, except 
the Alyeska case, and it does extend in the direction of a defendant in 
terms of Internal Revenue cases, the one area where vexatious or 
harassing prosecution of suits by the Government can produce a re- 
covery of attorneys' fees on the part of defendants. The Subcommittee 
on Courts, Civil Liberties and the Administration of Justice intends 
to continue the active study of the bills presented by these Members, 
and to consider drafting new legislation. An omnibus approach, 
though not recommended by the Justice Department, may be an ap- 
propriate vehicle for such legislation. However, the issue needs much 
further analysis than this session would allow. We welcome continued | 
input in this area, and promise that passage of S. 2278 will be an im- 
portant step in the direction of providing equal justice under the law. 

I suggest then that this will be still an open matter as an issue for 
the Congress but at this late hour we do well to adopt this very, very 
limited step today. 

Mr. Drinan. I thank the gentleman from Wisconsin. 

I am happy to yield briefly for purposes of debate only to my good 
friend, the gentleman from New York (Mr. Fish) . 

(Mr. Fish asked and was given permission to revise and extend his 
remarks.) 

Mr. Fish. Mr. Speaker, the civil rights attorney's fees bill, S. 2278, 
would allow a court, at its discretion, to award attorney's fees to a pre- 
vailing party in suits brought to enforce the civil rights laws. The 
purpose of the bill is to allow the courts to provide the traditional 
remedy of counsel fee awards to private citizens who must go to court 
to vindicate their rights under the civil rights statutes. 

The Supreme Court's recent Alyeska decision requires specific 
statutory authority for attorney's fee awards. This bill restores to the 
courts authority which they had exercised for years under the private 
attorneys general concept. It fills the gap in the civil rights laws under 
which attorney's fees have become unavailable in the most fundamen- 
tal civil rights cases. 

The average citizen does not have the financial resources to bring 
suit to enforce his rights unless attorney's fees are awarded. This bill 



265 



should be passed in order to provide more effective enforcement of the 
civil rights laws. 

Without the provision of attorney's fees, it would be very difficult to 
bring cases such as the following : 

First. Suits under section 1977 of the Revised Statutes— and section 
1978— against real estate companies which refused to sell lots to blacks. 
Lee v. Southern Home Sites (429 F. 2d 290 (5th Cir, 1970) ). 

Second. Suits under section 1978 of the Revised Statutes against 
realtors who discriminate in renting residential property. Brown v. 
Dallas (331 F. Supp. 1033 (N.D. Tex. 1971) ). 

Third. Suits under section 1979 of the Revised Statues, by blacks 
denied employment by the State highway safety patrol on the basis of 
race, Morrow v. Crisler ( F. Supp. (S.D. Miss., Sept, 29, 1971) ), 
and against a housing authority violating the 14th amendment equal 
protection clause by fixing rentals for welfare recipients at a higher 
rate than for nonwelfare recipients who had the same income. Ham- 
mond v. Housing Authority and Urban Reneroal Agency of Lane 
County, dreg., (328 F. Supp. 586 (D. Oreg. 1971)). 

Fourth. Suits under section 1980 of the Revised Statutes — and sec- 
tions 1977, 1979, and 1990 — by inmates of a penitentiary alleging vio- 
lation of the inmates' rights under the 1st, 8th, 13th, and 14th amend- 
ments. Gates v. Collier (F. Supp. N.D. Miss., Feb. 14, 1973) ) . 

Fifth. Suits under section 1981 of the Revised Statutes, which al- 
lows action against those having knowledge of a conspiracy to deprive 
persons of their civil rights and ability to prevent it, yet they do not, 
as in the case of police officers who witnessed one officer beat the plain- 
tiff and did nothing to prevent it. Symkowski v. Miller (294 F. Supp. 
1214 (D.C. Wis., 1969)). 

Mr. Drinan. Mr. Speaker, I am happy to yield for purposes of de- 
bate only to the distinguished gentleman from Minnesota (Mr. Quie). 
Mr. Quie. I thank the gentleman for yielding. 

I would like to ask the minority member, the gentleman from Illinois 
(Mr. Railsback), a question. I would like the gentleman from Massa- 
chusetts to listen to see if he agrees. 

First I would like to ask if the U.S. Government is the plaintiff in a 
civil rights case against an individual or corporation, can that indi- 
vidual or corporation as the prevailing party be awarded attorney's 
fees against the U.S. Government? 

Mr. Railsback. Mr. Speaker, will the gentleman yield ? 

Mr. Drinan. I yield to the gentleman from Illinois. 

Mr. Railsback. Mr. Speaker, as I read the bill before us, my answer 
would be yes. What we do is limit the United States from recovering 
but we do not limit the rights of other prevailing parties to recover in 
the event the United States would be the plaintiff in an action such as 
described in the bill. 

Mr. Quie. Mr. Speaker, if the gentleman will yield, would the gentle- 
man from Massachusetts agree with that answer ? Does the gentleman 
agree with that answer ? 

Mr. Drinan. I am not entirely certain because the statutes covered 
by this bill are not ordinarily used by the United States to initiate civil 
rights cases. 

Mr. Railsback. Mr. Speaker, if the gentleman will yield, I will try 
to answer. 



266 



Mr. Drinan. I yield to the gentleman from Illinois. 

Mr. Rai^jSBACK. What my answer is. as I read the bill before us, we 
limit the right of the U.S. Government to recover, we do not limit it 
in a case where the United States would be the plaintiff suing a defend- 
ant, we do not limit the 

[H 12164] 

defendant's right to recover. Where the judge might decide that a pre- 
vailing defendant should recover, we do not limit the defendant from 
recovering from the United States in civil rights cases. 

Mr. Drinan. If the gentleman will yield, that is very clearly limited. 
If a Federal judge came to that conclusion it would indeed be a most 
unusual case. This provision was inserted into the Senate bill. It did 
not originate with the House Judiciary Committee. It does give a 
remedy for the most extraordinary case where the defense could assert 
and prove to a Federal judge that an IRS case brought against him 
was so vexatious and so without merit that he should get compensation. 

Mr. Quie. Let me ask a second question. Suppose the individual while 
perhaps he could not prove it was harrassment or vexatious in the sense 
they brought a case they should not have brought before them, if he did 
prevail and the effects of paying his own attorney's fees and defense 
costs were economically damaging to him, would not the court be per- 
mitted to make a judgment, as I read this bill, that would require the 
attorney's fees to be paid to that individual as the prevailing party? 

Mr. Railsback. If the gentleman will yield further, I will give the 
gentleman from Minnesota my view in response to his question. 

As I read the bill, there is nothing that limits the right of a judge to 
exercise discretion in awarding reasonable attorney's fees to a pre- 
vailing litigant. Now the history has been however that judges have 
been reluctant to ever award reasonable attorney's fees unless there is 
evidence that there has been a vexatious or intimidating or harassing 
suit brought. 

We are not, in my opinion, attempting to change that; but in more 
direct response to the question of the gentleman from Minnesota (Mr. 
Quie) we are giving the court discretion to decide that. We are not say- 
ing in the bill that the court can only aw ard reasonable attorney's fees 
in cases where the suit w T as vexatious. We are not setting that forth. So 
I recognize that traditionally a court is very reluctant to award reason- 
able attorney's fees to people unless there is intimidation or harass- 
ment. On the other hand, we do not limit recovery to those cases. 
Clearly, that is not the intent of this legislation. 

Mr. Quie. Mr. Speaker, if the gentleman will yield further, the next 
question I have on the IRS is if the United States is the plaintiff and 
loses a civil rights case against a school district or college, can that 
school district or college as the prevailing party be awarded attorneys 
fees against the U.S. Government ? 

Mr. Railsback. Mr. Speaker, if the gentleman will jdeld further, 
again it would be in the discretion of the court and nowhere in the 
bill do we prevent a school district or college from recovering reason- 
able attorneys fees, even in a case where the United States is a party 
plaintiff. 

Mr. Qfie. Mr. Speaker, if the gentleman will yield further, the 
last question, as I read the bill, the court can award reasonable attor- 



267 



ney's fees to the prevailing party, in the bill it happens to treat even- 
handedly the prevailing party, whether it is the defendant or the 
plaintiff. 

Mr. Railsback. That is exactly the way I read the bill. 
Mr. Qtjie. Mr. Speaker, I thank the gentleman. 

Mr. Drixax. Mr. Speaker, I yield such time as she may consume to 
the gentlewoman from Xew York (Ms. Holtzman), a member of the 
committee. 

(Ms. Holtzmax^ asked and was given permission to revise and extend 
her remarks.) 

Ms. Holtzmax'. Mr. Speaker, I rise in very strong support of this 
legislation. I want to compliment the gentleman from Massachusetts 
(Mr. Drinan) and the gentleman from Wisconsin (Mr. Kastenmeier) 
for their leadership in bringing this very important bill to the floor. 

The Civil Eights Attorneys' Fees Award Act of 1976 (H.R. 15460) 
will help to assure that all Americans can have access to the courts to 
obtain the protections against discrimination contained in our laws 
and the Constitution. 

I am particularly pleased that the bill includes the amendment I 
offered in the Judiciary Committee adding title IX of the Education 
Amendments of 1972 — which prohibits discrimination in education on 
the basis of sex — to the civil rights statutes covered by this bill. 

For a number of years. Federal courts awarded attorneys' fees to 
people who won law suits in civil rights cases reasoning that the per- 
son who brings such a case functions as a "private attorney general" 
and acts not only for himself but also to enforce our laws. 

Last year, however, in Alyeska Pipeline Service Corporation against 
Wilderness Society, the Supreme Court ruled that attorneys' fees 
cannot be awarded unless specifically provided for by a statute. That 
is the purpose of this bill. 

Plaintiffs who suffer discrimination and other infringements of their 
civil rights are usually not wealthy people. The organizations who have 
helped them bring their cases are frequently not well financed. The 
Justice Department does not have the resources to bring suit for every 
civil rights violation. Thus, many people, deprived of their civil rights, 
may not as a practical matter be able to do anything about it. It is not 
right to deny people who cannot afford to pay attorneys' fees the avail- 
ability of justice through our courts. 

I am pleased that my amendment to include title IX of the Educa- 
tion Amendments of 1972 in this bill was adopted by the House 
Judiciary Committee and added to the Senate bill on the floor of that 
body. Title IX is the statute which protects people from sex discrimi- 
nation in education. It is vitally important for protecting women from 
discrimination in admission to graduate school, tracking into voca- 
tional programs which lead to dead end jobs, discrimination in faculty 
promotion and tenure decisions, and other forms of discrimination. 

Mr. Drixax\ Mr. Speaker, I am happy to yield such time as she 
may consume to the gentlewoman from Texas (Miss Jordan). 

(Miss Jordax' asked and was given permission to revise and extend 
her remarks.) 

Miss Jordan. Mr. Speaker. I thank the gentleman from Massachu- 
setts for yielding to me. 



268 



I rise in support of this legislation. I wish that there were something 
I could say which would allay the fears expressed by the gentleman 
Prom Maryland and others t hat somehow the plaintiffs and the defend- 
ants are not treated with equanimity under this legislation. What we 
are trying to do in this hill is simply to open the judicial process to 
everybody who is entitled to use that process* Hopefully, they would 
not be discouraged because of the prospect of attorney fees deterring 
their enthusiasm. There is no reason why, if a person feels he has a 
legitimate case, that he has a meritorious suit, that he should refrain 
from <i;<> i 1 1 <jc into court simply because he thinks the cost of the attor- 
ney- would be too much for him to bear. 

Mr. Speaker, I feel t hat we have a responsibility to join those other 
54 cases which allow for the awarding of attorneys' fees and say to 
those potential plaint ill's and the defendants also that, "You are not to 
be deterred simply because you have to hire a lawyer."' 

This is not a bill that we could term a food-stamp bill for lawyers. 
It is not going to work that way. 

I know many are concerned about the language which talks about 
vexatious, embarrassment and harassment, but these words have a 
diminution effect on those plaintiffs who may bring actions which are 
not of any merit and should not be brought in any court of law. If the 
plaintiff knows that that plaintiff may be saddled with attorneys' fees 
if he brings a suit which is vexatious or for purposes of harassment or 
intended to embarrass the defendant, the language of this bill would 
deter that plaintiff from bringing such a suit. 

So just do not look at it as some additional burden on the part of 
defendants under this suit. Look at it as a deterrent on the part of the 
plaintiff from bringing those actions which have no business whatso- 
ever in a court of law. 

If we could view T that kind of a balance, it may be that we could go 
along with this language, which is only an attempt to carry out what 
all of us want, and that is to open the doors of access to the system of 
justice to everyone who comes to the door if he does, in fact, have a 
meritorious claim. 

I hope that the Members will support this measure. I support it with- 
out reservation. I know the Members feel that the hour is late and that 
there is not time for a fair consideration of it, but if they were to look 
at it, it is just a right piece of legislation which ought to be adopted 
by this body. 

Mr. Bauman. Mr. Speaker, will the gentlewoman yield ? 
Miss Jordan. I yield to the gentleman from Maryland. 
Mr. Bauman. Mr. Speaker, the distinguished gentlewoman from 
Texas has given a brilliant exposition of her case as 

[H 12165] 

always, and I certainly can understand her point. I am not so much 
concerned about dampening enthusiasm for law suits. I agree that 
people ought to have their legal rights vindicated, but could we not 
imagine a situation in which a so-called public interest lawyer, who 
may be financed independently, would be inclined to file a suit not only 
to test a legal point but also in the hope that the court Would grant his 
client plaintiffs' legal fees, and therefore his expenses? 



269 



It might well be in the nature of a harassing suit, and there are many 
of these filed across the country. It seems to me that this legislation and 
the hope of reimbursement it creates is going to encourage suits. It is 
most difficult to prove harassment or malicious intent on the part of 
a plaintiff and so defendants would be at a disadvantage. 

Miss Jordan. I can only say in response to the gentleman from Mary- 
land, have faith in your judges. It is their discretion which will deter- 
mine whether this party is entitled to attorneys' fees, and I know the 
gentleman has an abiding faith in the American judiciary. 

Mr. Seiberlixg. Mr. Speaker, as the original congressional sponsor 
. of legislation to authorize the awarding of attorneys' fees in civil rights 
cases, I rise in strong support of S. 2278. 

Although the bill is entitled the Civil Rights Attorney's Fee Awards 
Act, it is not a laAvyers' bill. Instead, it is legislation which is clearly 
needed — because of the Supreme Court's ruling last year in AJyeska 
Pipeline Service Co. v. Wilderness Society — if our civil rights laws are 
to be effective. 

In the Alyeska case, the Supreme Court held that, with a few very 
narrow exceptions, the Federal courts have no inherent power to award 
attorneys' fees unless a statute expressly authorizes such awards. 

The effect of that ruling on the civil rights laws is going to be dev- 
astating unless we enact this bill. In fact, a failure to authorize the 
awarding of attorneys' fees in civil rights cases will, as a practical 
matter, repeal the civil rights laws for most Americans. 

Most Americans, Mr. Speaker, cannot afford to hire a lawyer if their 
constitutional rights are violated or if they are the victims of illegal 
discrimination. Most Americans simply cannot obtain free legal serv- 
ices, no matter how meritorious their case may be. 

Eight now, if someone violates your civil rights, you have the legal 
light to go to court and sue that person to make him stop violating 
your rights and also to make him pay you for any injury you have 
suffered. But — and this is important but — you have to pay the entire 
expense of hiring your lawyer, even if you win the case. So, what do 
you do if you cannot afford a lawyer and cannot get free legal services ? 
The answer is that there is nothing you can do, because you will have 
become the victim of a legal system which is not very responsive to the 
majority of Americans who cannot find effective legal assistance and 
representation. 

Unless you can get adequate legal representation, the civil rights 
laws are just a lot of words. But if you can obtain a lawyer's services, 
those civil rights laws are the vehicle for you to fight illegal and un- 
constitutional discrimination. If you have a meaningful opportunity 
to use the civil rights laws to protect yourself, then they are among the 
most important laws in the entire United States Code. 

If the law does not authorize the awarding of attorneys' fees" in 
meritorious civil rights cases, many potential plaintiffs will be deterred 
from bringing deserving cases to remedy violations of the Constitu- 
tion, especially those cases in which the appropriate relief is primarily 
equitable or injunctive rather than monetary. 

Mr: Speaker, neither the Constitution nor the civil rights laws are 
self-executing. Instead, they rely both on public or governmental and 
on private enforcement. The Government obviously does not have 



270 

the resources to investigate and prosecute all possible violations of the 
Constitution, so a arcat burden falls directly on the victims to enforce 
their own rights. Our laws should facilitate that private enforcement, 
and should — within reasonable limits — encourage potential civil rights 
plaintiffs to bring meritorious cases. 

Two weeks ago, Mr. Speaker, Congress completed action on a very 
important antitrust bill, the Hart-Scott-Rodino Antitrust Improve- 
ments Act. Yesterday the President signed it into law. That act con- 
tains a provision for attorneys' fees in purely private inj miction 
cases under the antitrust laws. What we said in the Judiciary Com- 
mittee report on that bill is worth repeating here : 

The antitrust laws clearly reflect the national policy of encouraging private 
parties ... to help enforce the antitrust laws . . . Litigation by "private attor- 
neys general" for monetary relief and for injunctive relief has frequently proved 
to be an effective enforcement tool. . . . Alyeska creates a significant deterrent 
to potential plaintiffs bringing and maintaining lawsuits to enjoin antitrust vio- 
lations. Without the opportunity to recover attorneys' fees in the event of win- 
ning their cases, many persons and corporations would be unable to afford or 
unwilling to bring antitrust injunction cases. 

Indeed, the need for awarding of attorneys' fees in § 16 injunction cases is 
greater than the need in § 4 treble damage cases. In damage cases, a prevailing 
plaintiff recovers compensation, at least. In injunction cases, however, without the 
shifting of attorneys' fees, a plaintiff with a deserving case would personally 
have to pay the very high price of obtaining judicial enforcement of the law 
and of the important national policies the antitrust laws reflect. A prevailing 
plaintiff should not have to bear such an expense. 

The meaning is very simple : when the cost of private enforcement 
actions becomes too great, there will be no private enforcement. 

The civil rights laws are no less important than the antitrust laws, so 
we should give civil rights victims the same protections we give anti- 
trust victims. 

Of course, Congress has recognized that some civil rights laws are 
deserving of attorneys' fees awards. In reviewing one such law, the 
Supreme Court said the following : 

When the Civil Rights Act of 1964 was passed it was evident that enforce- 
ment would prove difficult and that the Xation would have to rely in part upon 
private litigation as a means of securing broad compliance with the law. A Title I 
II [of the 1964 Civil Rights Act, 42 U.S.C. § 2000a, et seq.] suit is thus private 
in form only. When a plaintiff brings an action under the Title, he cannot re- 
cover damages. If he obtains an injunction, he does so not for himself alone but 
also as a "private attorney general." vindicating a policy that Congress con- 1 
sidered of the highest priority. If successful plaintiffs were routinely forced to I 
bear their own attorneys' fees, few aggrieved parties would be in a position to 
advance the public interest by invoking the injunctive powers of the federal i 
courts. Congress therefore enacted the provision for counsel fees — not simply 
to penalize litigants who deliberately advance arguments they know to be un- 
tenable but. more broadly, to encourage individuals injured by racial discrimina- 
tion to seek judicial relief under Title II. 

It follows that one who succeeds in obtaining an injunction under that Title 
should ordinarily recover an attorney's fee unless special circumstances would 
render such an award unjust . . . Xncman v. Piggic Park Enterprises, Inc., 
390 U.S. 400, 401-02 (1968) (footnotes omitted). 

One of the expert witnesses in the Judiciary Committee hearings, 
Armand Derfner of the Lawyers' Committee for Civil Rights Under 
Law. explained the anomaly created by Alyeska in the following 
manner : 



271 



The Alyeska decision created an unexpected and anomalous gap in laws. For 
instance, fees are now authorized in an employment discrimination suit under 
Title VII of the 1964 Civil Rights Act. but not in the same case brought under 
42 U.S.C. § 1981, which protects similar rights, but involves fewer technical 
prerequisites to the filing of an action. Fees are allowed in a suit under Title II 
of the 1964 Act challenging discrimination in a private restaurant, but not in 
suits under 42 U.S.C. § 1983 redressing violations of the Federal Constitution or 
laws by officials, who are sworn to uphold the laws. 

Mr. Speaker, the civil rights attorneys' fee legislation which I in- 
troduced — H.R. 8220, with 16 cosponsors — called for the mandatory 
award of attorneys' fees to prevailing* plaintiffs, because I felt that 
the awards should be automatic except in the most extraordinary cir- 
cumstances. I understand that S. 2278 will codify that view as to pre- 
vailing plaintiffs, following the Piggie Park guidelines. 

I also felt that prevailing defendants should receive attorneys' fees 
only in the most extraordinary circumstances. Alyeska makes it very 
clear that the Federal courts have the inherent authority to award at- 
torneys' fees to defendants if the plaintiffs have acted in bad faith, 
vexatiously, wantonly, or for oppressive reasons. And that is the 
standard which should be applied under S. 2278. It would be wholly 
inappropriate for the courts to regularly award attorneys' fees to de- 
fendants who prevail in these civil rights cases. 

It is important that we understand that, while the bill authorizes 
awards to "any party" who substantially prevails, in the exercise of 
discretion under this bill, the courts are expected to apply the appro- 
priate, and differing, standards applicable to plaintiffs and to defend- 
ants. Mary Frances Derf ner of the Lawyers Committee for Civil Eights 
Under Law explained the reason for the difference in the following 
way : 

[H 12166] 

The reasons for the different standards are obvious. Congress, having pro- 
vided for attorneys' fees as a means of enabling aggrieved parties to bring en- 
forcement suits, does not intend to deter those aggrieved parties by making them 
face the prospect of paying their opponents' fees if the suit, though brought in 
good faith, is unsuccessful. Congress does, however, intend to deter frivolous 
and harassing litigation, and the availability of fees to prevailing defendants 
would definitely deter those plaintiffs who seek, for their own ends, to take ad- 
vantage of citizen suit provisions. This theme has been repeatedly expressed in 
cases and legislative history. 

Mr. Speaker, the House Judiciary Committee reported out a counter- 
part, H.R. 15460, to the bill before us. S. 2278. The Senate bill, how- 
ever, contains an additional provision allowing the award of attorneys' 
fees to prevailing defendants in cases brought by the Government 
against persons alleged to have violated the Internal Revenue Code. 
In view of the possibility — and, unfortunately, the occasional actual- 
ity — of abuse by the Internal Revenue Service of the Government's 
powers to enforce the tax laws by bringing civil actions without foun- 
dation, in bad faith or for the purpose of harassing individual tax- 
payers, the Senate addition is a good one, which I strongly support. 

Mr. Speaker, this bill deserves our overwhelming support. A vote 
for the bill is a vote for effective civil rights law>. 

Mr. Drixax. Mr. Speaker, I move the previous question on the Sen- 
ate bill. 



79-586 - 77 - 19 



272 



The previous question was ordered. 

The Senate lull was ordered to be read a third time and was read 
the third time. 

MOTION TO RECOMMIT OFFERED BY MR. ASIIBROOK 

Mr. Ashbrook. Mr. Speaker, I offer a motion to recommit. 
The Clerk read as follows: 

The Speaker. Is the gentleman opposed to the bill? 
Mr. Ashbrook. I certainly am, Mr. Speaker. 
The Speaker. The gentleman qualifies. 
The Clerk read as follows : 

Mr. Ashbrook moves to recommit the bill, S. 2278 to the Committee on the 
Judiciary with instructions that the bill be reported back forthwith with the 
following amendment ; 

"Sec. 3. The provisions of this act shall take effect upon enactment and shall 
be applicable to cases filed only after the effective date of this act." 

Mr. Ashbrook. Mr. Speaker, I merely take this time — and I will not 
take more than a minute — but I think I can point out to the House, or 
at least to those who are here, the legislative travesty we find ourselves 
in. The gentleman from Massachusetts would not recognize anyone for 
an amendment. I think there are very important amendments to be 
offered. 

"Whatever problems we have with this bill, whatever fears we have, 
we will at least allay some of those fears if we exempt from the cover- 
age of this act all of those hundreds of cases which are pending right 
now. That is one small step we can take to make this a more respon- . 
sible piece of legislation. 

Mr. Speaker, I certainly would urge adoption of this motion to 
recommit. 

The Speaker. Without objection, the motion to recommit. 
There was no objection. 

The Speaker. The question is on the motion to recommit. 

The question was taken; and the Speaker announced that the noes 
appeared to have it. 

Mr. Ashbrook. Mr. Speaker. I object to the vote on the ground that 
a quorum is not present and make the point of order that a quorum is 
not present. 

The Speaker. Evidently a quorum is not present. 
The Sergeant at Arms will notify absent Members. 
The vote was taken by electronic device, and there were — yeas 104, 
nays 268, not voting 58, as follows : 



[Roll No. 859] 



YEAS — 104 



Abdnor 
Ambro 



Bowen 
Breaux 
Brinkley 
Brooks 
Brown, Mich. 
Brown. Ohio 
Broyhill 
Burleson, Tex. 
Burlison, Mo. 



Butler 
Cederberg 
Clawson, Del 
Collins, Tex. 
Conlan 
Crane 

Daniel, Dan 
Daniel, R. W. 
Devine 



Anderson, Calif. 

Archer 

Ashbrook 



Bafalis 
Bauman 



Beard, Tenn. 
Bevill 



273 



Dickinson 

Downing, Va. 

Edwards, Ala. 

English 

Erlenborn 

Forsythe 

Fountain 

Frey 

Ginn 

Goldwater 

Goodling 

Grassley 

Guyer 

Haley 

Hammerschmidt 

Hansen 

Harsha 

Hefner 

Henderson 

Hightower 

Holt 

Jarman 

Johnson, Pa. 

Jones, N.O. 

Jones, Okla. 

Kasten 



Abzug 
Addabbo 
Alexander 
Allen 

Anderson, 111. 

Andrews, N.C. 

Andrews, N. Dak. 

Annunzio 

Ashley 

Aspin 

AuColn 

Badillo 

Baucus 

Beard, R.I. 

Bedell 

Bell 

Bennett 

Bergland 

Biaggi 

Biester 

Bingham 

Blanchard 

Blouin 

Boggs 

Boland 

Boiling 

Bonker 

Brademas 

Breckinridge 

Brodhead 

Broomfield 

Brown, Calif. 

Buchanan 

Burgener 

Burke, Calif. 

Burke, Mass. 



Kelly 

Kemp 

Ketchum 

Kindness 

Landrum 

Latta 

Le vitas 

Lloyd, Tenn. 

Lott 

Lujan 

McDonald 

Martin 

Mathis 

Michel 

Miller, Ohio 

Mitchell, N.Y. 

Montgomery 

Moorhead, Calif. 

Mottl 

Myers, Ind. 

Nichols 

Paul 

Poage 

Rhodes 

Roberts 

Robinson 

NAYS— 268 

Burton, John 

Byron 

Carney 

Carr 

Carter 

Chappell 

Chisholm 

Clausen, Don H. 

Clay 

Cleveland 

Cochran 

Cohen 

Collins, 111. 

Conable 

Conte 

Corman 

Cornell 

Coughlin 

D' Amours 

Daniels, N.J. 

Danielson 

Davis 

de la Garza 

Delaney 

Dellums 

Dent 

Derrick 

Derwinski 

Diggs 

Dodd 

Downey, N.Y. 
Drinan 
Duncan, Oreg. 
Duncan, Tenn. 
Early 
Fraser 



Rousselot 

Runnels 

Satterfield 

Schneebeli 

Schulze 

Sebelius 

Shriver 

Shuster 

Sikes 

Skubitz 

Smith, Nebr. 

Spence 

Symms 

Taylor, Mo. 

Taylor, N.C. 

Teague 

Vander Jagt 

Waggonner 

Wampler 

Whitehurst 

Whitten 

Winn 

Wirth 

Young, Alaska 
Young, Fla. 



Frenzel 

Fuqua 

Gaydos 

Giaimo 

Gibbons 

Gilman 

Gonzalez 

Gradison 

Gude 

Hagedorn 

Hall, Tex. 

Hamilton 

Hanley 

Hannaford 

Harkin 

Harrington 

Harris 

Hawkins 

Hayes, Ind. 

Hechler, W. Va. 

Heckler, Mass. 

Helstoski 

Hicks 

Holtzman 

Horton 

Howard 

Hubbard 

Hughes 

Hungate 

Hutchinson 

Hyde 

Jeffords 

Jenrette 

Johnson, Calif. 

Jones, Ala. 

Jones, Tenn. 



274 





NAYS— 268— Continued 




Jordan 


Rees 


Eilberg 


Karth 


Regula 


Emery 


Kastenmeier 


Reuss 


Evans, Ind. 


Kazen 


Richmond 


Fary 


Koch 


Rinaldo 


Fascell 


Krebs 


Risenhoover 


Fenwick 


Kruger 


Rose 


Findley 


LaFalce 


Rodino 


Fish 


Lagomarsino 


Roe 


Fisher 


Leggett 


Rogers 


Fithian 


Lehman 


Roncalio 


Flood 


Lent 


Rooney 


Florio 


.Lloyd, Calif. 


Rosenthal 


Flowers 


Long, La. 


Rostenkowski 


Foley 


Long, Md. 


Roush 


Ford, Mich. 


Lundine 


Roybal 


Ford, Tenn. 


McClory 


Ruppe 


Mineta 


McCloskey* 


Russo 


Minish 


McCormack 


St Germain 


Mitchell, Md. 


Tiff « T"\** J 

McDade 


Santini 


Moakley 


McEwen 


Sarbanes 


Mollohan 


McJb all 


Schroeder 


Moore 


McHugh 


Seiberling 


Moorhead, Pa. 


McKay 


fenarp 


Morgan 


Mc Kinney 


Shipley 


Mosher 


Madden 


Simon 


%/f _ _ -.,.,1- _. Til 

Murphy, 111. 


Maguire 


felSK 


Murphy, N.Y. 


Mazzoli 


Slack 


Murtha 


Meeds 


Smith, Iowa 


Myers, Pa. 


Melcner 


Solarz 


Natcher 


Metcalfe 


Staggers 


Neal 


Mezvinsky 


Stanton, J. William 


Nedzi 


Miller, Calif. 


Stanton, James V. 


Nolan 


Mills 


Stark 


Nowak 


Obey 


Steed 


Oberstar 


O'Brien 


Steiger, Wis. 


Vanik 


O'Neill 


fctokes 


Walsh 


Ottinger 


Stratton 


Waxman 


Patten, N.J. 


Stuckey 


Weaver 


Patterson, Calif. 


Studds 


Whalen 


Pattison, N.Y. 


Sullivan 


White 


Perkins 


Symington 


Wiggins 


Pettis 


laicott 


\\ nson, Bob 


Peyser 


Thone 


Wilson, Tex. 


Pickle 


Thornton 


Wolff 


Pike 


Traxler 


Wydler 


Pressler 


Treen 


Wylie 


Preyer 


Tsongas 


Yates 


Price 


Ullman 


Yatron 


Pritchard 


Van Deerlin 


Young, Tex. 


Quie 


Vander Veen 


Zablocki 


Railsback 


Eckhardt 


Zeferetti 


Randall 


Edgar 




Rangel 


Edwards, Calif. 






NOT VOTING— 58 




Adams 


Dingell 


Hall, 111. 


Armstrong 


du Pont 


Hebert 


Baldus 


Esch 


xieinz 


Burke, Fla. 


Eshleman 


Hillis 


Burton, Phillip 


Evans, Colo. 


Hinshaw 


Clancy 


Evins, Tenn. 


Holland 


Conyers 


Flynt 


Howe 


Cotter 


Green 


Ichord 



275 



Jacobs 


Monett 


Speilman 


Johnson, Colo. 


Moss 


Steelman 


Keys 


JN1X 


Steiger, Ariz. 


a r^r^n \ of ai< 
ALC^oiiisier 


yj .tiara 


Stephens 


Madigan 


Passman 


Thompson 


Mahon 


Pepper 


Udall 


^Xann 


On ill on 


> IgUl ILU 


Matsunaga 


Riegle 


Wilson, C. H. 


Meyner 


Ryan 


Wright 


Mikva 


Sarasin 


Young, Ga. 


Milford 


Scheuer 




Mink 


Snyder 





The Clerk announced the following pairs : 

Mrs. Meyner with Mr. Evins of Tennessee. 

Mr. Pepper with Mr. Armstrong. 

Mr. Thompson with Mr. Mahon. 

Mr. Phillip Burton with Mr. Esch. 

Mr. Cotter with Mr. Holland. 

Mr. Hebert with Mr. Hall of Illinois. 

Mr. Matsunaga with Mr. Madigan. 

Mr. Moss with Mr. du Pont. 

Mr. Nix with Mr. Passman. 

Mr. Mikva with Mr. Burke of Florida. 

Mr. Ichord with Mr. Milford. 

Mr. Conyers with Mr. Eschleman. 

Mr. Adams with Mr. Moffett. 

Mr. Green with Mr. Sarasin. 

Mrs. Keys with Mr. Clancy. 

Mr. Jacobs with Mr. Quillen. 

Mr. Riegle with Mr. Howe. 

Mrs. Speilman with Mr. McCollister. 

Mr. Vigorito with Mr. Flynt. 

[H 12167] 

Mr. Charles H. Wilson of California with Mr. Scheuer. 

Mr. Young of Georgia with Mr. Steiger of Arizona. 

Mr. Wright with Mr. Heinz. 

Mr. Mann with Mr. Johnson of Colorado. 

Mr. Evans of Colorado with Mr. Stephens. 

Mr. Dingell with Mr. Hillis. 

Mr. Baldus with Mr. O'Hara. 

Mrs. Mink with Mr. Udall. 

Mr. Ryan with Mr. Steelman. 

Messrs. Talcott, Quie, and Hagedorx changed their vote from 
"yea" to "nay." 

So the motion to recommit was rejected. 

The result of the vote was announced as above recorded. 

The Speaker pro tempore (Mr. Boiling). The question is on the 
passage of the bill. 

The question was taken. 

RECORDED VOTE 

Mr. Butler. Mr. Speaker, I demand a recorded vote. 
A recorded vote was ordered. 



276 



The vote was taken by electronic device and there were — ayes 306, 
noes 08, not voting 56, as follow : 



Abzug 
Addabbo 
Alexander 
Allen 

Anderson, Calif. 

Anderson, 111. 

Andrews, N.C. 

Andrews, X. Dak. 

Annunzio 

Armstrong 

Ashley 

Aspin 

A u Coin 

Badillo 

Bancus 

Beard. R.I. 

Bedell 

Bell 

Bennett 

Bergland 

Biaggi 

Biester 

Bingham 

Blanchard 

Blouin 

Boggs 

Boland 

Boiling 

Bonker 

Brademas 

Breckinridge 

Brodhead 

Brooks 

Broomfield 

Brown, Calif. 

Brown. Mich. 

Brown, Ohio 

Broyhill 

Buchanan 

Burgener 

Burke, Calif. 

Burke. Mass. 

Burton, John 

Butler 

Byron 

Carney 

Carr 

Carter 

Cederberg 

Chappell 

Chisholm 

Clausen. Don H. 

Clay 

Cleveland 

Cochran 

Cohen 

Collins. 111. 

Conable 

Conte 



[Roll No. 860] 
AYES— 306 

Corman 

Cornell 

Coughlin 

D'Amours 

Daniels, X.J. 

Danielson 

Davis 

de la Garza 

Delaney 

Dellums 

Dent 

Derrick 

Derwinski 

Diggs 

Dodd 

Downey, X.Y. 
Downing, Va. 
Drinan 

Duncan, Oreg. 
Duncan, Tenn. 
Early 
Eckhardt 
Edgar 

Edwards, Ala. 

Edwards, Calif. 

Eilberg 

Emery 

English 

Erlenborn 

Evans, Ind. 

Fary 

Fascell 

Fenwick 

Findley 

Fish 

Fisher 

Fithian 

Flood 

Florio 

Flowers 

Foley 

Ford, Mich. 

Ford, Tenn. 

Forsythe 

Fountain 

Fraser 

Frenzel 

Fuqua 

Gaydos 

Giaimo 

Gibbons 

Gilman 

Ginn 

Goldwater 

Gonzalez 

Goodling 

Gradison 

Grassley 

Gude 



Guyer 

Ilagedorn 

Hamilton 

Hanley 

Hannaford 

Harkin 

Harrington 

Harris 

Harsha 

Hawkins 

Hayes, Ind. 

Hechler, W. Va. 

Heckler, Mass. 

Hefner 

Helstoski 

Hicks 

Holtzman 

H or ton 

Howard 

Hubbard 

Hughes 

Hungate 

Hutchinson 

Hyde 

Jenrette 

Johnson, Calif. 

Johnson, Pa. 

Jones, Okla. 

Jordan 

Kasten 

Kastenmeier 

Kazen 

Kemp 

Koch 

Krebs 

Krueger 

LaFalce 

Lagomarsino 

Latta 

Lehman 

Lent 

Levitas 

Lloyd, Calif. 

Long, La. 

Long, Md. 

Lujan 

Lundine 

McClory 

McCloskey 

McCormack 

McDade 

McEwen 

McFall 

McHugh 

McKay 

McKinney 

Madden 

Madigan 
Maguire 



277 



Mann 

Martin 

Mazzolli 

Meeds 

Melcher 

Metcalfe 

Mezvinsky 

Miller, Calif. 

Mills 

Mineta 

Minish 

Mitchell, Md. 

Mitchell, X.Y. 

Moakley 

Mollohan 

Moore 

Moorhead, Pa. 

Morgan 

Mosher 

Murphy, 111. 

Murphy, N.Y. 

Murtha 

Myers, Pa. 

Xatcher 

Neal 

Nedzi 

Nolan 

Nowak 

Oberstar 

Obey 

O'Brian 

O'Hara 

O'Neill 

Ottinger 

Patten, N.J. 

Patterson, Calif. 

Pattison, N.Y. 

Perkins 

Pettis 

Peyser 

Pickle 

Pike 

Pressler 



Abdnor 

Ambro 

Archer 

Ashbrook 

Bafalis 

Bauman 

Beard, Tenn. 

Bevill 

Bowen 

Breaux 

Brinkley 

Burleson, Tex. 

Burlison, Mo. 

Clawson, Del 

Collins, Tex. 

Conlan 

Crane 

Daniel, Dan 
Daniel, R. W. 



Preyer 
Price 
Pritchard 
Quie 

Railsback 

Randall 

Rangel 

Rees 

Regula 

Reuss 

Richmond 

Rinaldo 

Risenhoover 

Rodino 

Roe 

Rogers 

Roncalio 

Rooney 

Rose 

Rosenthal 

Rostenkowski 

Roush 

Roybal 

Runnels 

Ruppe 

Russo 

St Germain 

Santini 

Sarbanes 

Schroeder 

Schulze 

Sebelius 

Seiberling 

Sharp 

Shipley 

Shriver 

Simon 

Sisk 

Skubitz 

Slack 

Smith, Iowa 
Smith, Nebr. 
Solarz 

NOES— 68 

Devine 

Dickinson 

Frey 

Haley 

Hall, Tex. 

Hammerschmidt 

Hansen 

Henderson 

Hightower 

Holt 

Jarman 

Jones, Ala. 

Jones, N.C. 

Jones, Tenn. 

Kelly 

Ketchum 

Kindness 

Landrum 

Lloyd, Tenn. 



Spellman 

Staggers 

Stanton, J. William 
Stark 

Steiger, Wis. 

Stokes 

Stratton 

Stuckey 

Studds 

Sullivan 

Symington 

Talcott 

Teague 

Thompson 

Thone 

Thornton 

Traxler 

Treen 

Tsongas 

Ullman 

Van Deerlin 

Vander Jagt 

Yander Yeen 

Vanik 

Walsh 

Wampler 

Waxman 

Weaver 

Whalen 

White 

Whitehurst 

Wiggins 

Wilson, Bob 

Wilson, Tex. 

Winn 

Wolff 

Wydler 

Wylie 

Yates 

Yatron 

Young, Tex. 

Zablocki 

Zeferetti 



Lott 

McDonald 

Mahon 

Mathis 

Michel 

Milford 

Miller, Ohio 

Montgomery 

Moorhead, Calif. 

Mottl 

Myers, Ind. 

Nichols 

Paul 

Poage 

Rhodes 

Roberts 

Robinson 

Rousselot 

Satterfield 



278 



Schneebeli 
Shuster 
Sikes 
Spence 



Adams 

Baldus 

Burke, Fla. 

Burton, Phillip 

Clancy 

Conyers 

Cotter 

Dingell 

du Pont 

Esch 

Eshleman 
Evans, Colo. 
Evins, Tenn. 
Flynt 
Green 
Hall, 111. 
Hebert 
Heinz 
Hillis 



Symms 
Taylor, Mo. 
Taylor. N.C. 
Waggonner 



NOT VOTING — 56 



Hinshaw 
Holland 
Howe 
Ichord 

Jacobs 

Jeffords 

Johnson, Colo. 

Karth 

Keys 

Leggett 

McCollister 

Matsunaga 

Meyner 

Mikva 

Mink 

Moffett 

Moss 

Nix 

Passman 



Mr. 
Mr. 
Mr. 
Mr. 
Mr. 
Mr. 



Mr. 
Mr. 
Mr. 
Mr. 
Mr. 
Mr. 
Mr. 
Mr. 
Mrs. 



Whit ten 
Young, Alaska 
Young, Fla. 



Pepper 

Quillen 

Riegle 

Ryan 

Sarasin 

Scheuer 

Snyder 

Stanton, James V. 
Steed 
Steelman 
Steiger, Ariz. 
Stephens 
Udall 
Vigorito 
Wilson, C. 
Wirth 
Wright 
Young, Ga. 



IT. 



The Clerk announced the following pairs : 

Mr. Wirth with Mr. Dingell. 
Mrs. Meyner with Mr. Evins of Tennessee. 
Mr. Pepper with Mr. Esch. 
Cotter with Mr. Holland. 
Phillip Burton with Mr. Hall of Illinois. 
Matsunaga with Mr. du Pont. 
Moss with Mr. Passman. 
Nix with Mr. Burke of Florida. 
Mikva with Mr. Eshleman. 
Mr. Conyers with Mr. Heinz. 
Mr. Adams with Mr. Sarasin. 
Mr. Green with Mr. Clancy. 
Mrs. Keys with Mr. Howe. 
Mr. Jacobs with Mr. McCollister. 
Riegle with Mr. Flynt. 
Moffett with Mr. Scheuer. 
Vigorito with Mr. Steiger of Arizona. 
Charles H. Wilson of California with Mr. Stephens. 
Young of Georgia with Mr. Hillis. 
Wright with Mr. Steelman. 
Evans of Colorado with Mr. Karth. 
Baldus with Mr. Leggett. 
Mink with Mr. Ryan. 



Mr. Hebert with Mr. Udall. 

Mr. Steed with Mr. James V. Stanton. 

Mr. Ichord with Mr. Jeffords. 

Mr. Quillen with Mr. Johnson of Colorado. 

So the Senate bill was passed. 

The result of the vote was announced as above recorded 
A motion to reconsider was laid on the table. 



APPENDIXES 



APPENDIX A 



Statutes Covered or Amended by P.L. 94-559 

THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT OF 1976, (S. 2278) 

1. Revised Statutes § 1977 (42U.S.C.§ 1981). 
§ 1981. Equal rights under the law 

All persons within the jurisdiction of the United States shall have 
the same right in every State and Territory to make and enforce con- 
tracts, to sue, he parties, give evidence, and to the full and equal henefit 
of all laws and proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of every kind, and to no 
other. 

R.S. § 1977. 

. 2. Revised Statutes § 1978 (42 U.S.C. § 1982) . 
§ 1982. Property rights of citizens 

All citizens of the United States shall have the same right, in every 
State and Territory, as is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell. hold, and convey real and personal property. 
R.S. § 1978. 

3. Revised Statutes § 1979 (42 U.S.C. § 1983) . 

§ 1983. Civil action for deprivation of rights 

Every person who, under color of any statute, ordinance, regulation, 
custom, or usage, of any State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall be liable to the 
party injured in an action at law. suit in equity, or other proper pro- 
ceeding for redress. 
R.S. § 1979. 

4. Revised Statutes § 1980 (42 U.S.C. § 1985). 

§ 1985. Conspiracy to interfere with civil rights — Preventing offi- 
cer from performing duties 

(1) If two or more persons in any State or Territory conspire to 
prevent, by force, intimidation, or threat, any person from accepting 
or holding any office, trust, or place of confidence under the United 
States, or from discharging any duties thereof: or to induce by like 
means any officer of the United States to leave any State, district, or 
place, where his duties as an officer are required to be performed, or to 
injure him in his person or property on account of his lawful discharge 
of the duties of his office, or while engaged in the lawful discharge 
thereof, or to injure his property so as to molest, interrupt, hinder, or 
impede him in the discharge of his official duties: 

(15) 

(281) 



282 



16 

Obstructing justice; intimidating party, witness, or juror 

(2) If two or more persons in any State or Territory conspire to 
deter, by force, intimidation, or threat, any party or witness in any 
court of the United States from attending such court, or from testi- 
fying to any matter pending therein, freely, fully, and truthfully, or 
to injure such party or witness in his person or property on account 
of his having so attended or testified, or to influence the verdict, pre- 
sentment, or indictment of any grand or petit juror in any such court, 
or to injure such juror in his person or property on account of any ver- 
dict, presentment, or indictment lawfully assented to by him. or of 
his being or having been such juror; or if two or more persons con- 
spire for tin 1 purpose of impeding, hindering, obstructing, or defeat- 
ing, in any manner, the due course of justice in any State or Territory, 
with in rent to deny to any citizen the equal protection of the laws, or 
to injure him or his property for lawfully enforcing, or attempting to 
enforce, the right of any person, or class of persons, to the equal pro- 
tection of the laws : 

Depriving persons of rights or privileges 

(3) If two of more persons in any State of Territory con>pire or 
go in disguise on the highway or on the premises of another, for the 
purpose of depriving, either directly or indirectly, any person or class 
of persons of the equal protection of the laws, or of equal privileges and 
immunities under the laws: or for the purpose of preventing or hin- 
dering the constituted authorities of any State or Territory from giv- 
ing or securing to all persons within such State or Territory the equal 
protection of the laws: or if two or more persons conspire to prevent 
by force, intimidation, or threat, any citizen who is lawfully entitled 
to vote, from giving his support or advocacy in a legal manner, toward 
or in favor of the election of any lawfully qualified person as an elector 
for President or Vice President, or as a Member of Congress of the 
United States; or to injure any citizen in person or property on account 
of such support or advocacy: in any case of conspiracy set forth in this 
section, if one or more persons engaged therein do. or cause to be done, 
any act in furtherance of the object of such conspiracy, whereby 
another is injured in his person or property, or deprived of having and 
exercising any right or privilege of a citizen of the United States, the 
party so injured or deprived may have an action for the recovery of 
damages, occasioned by such injury or deprivation, against any one 
of more of the conspirators. 

U.S. s, 1980. 

5. Revised Statutes § 1981 (42 U.S.C. § 1986). 
§ 1986. Same; action for neglect to prevent 

Every person who. having knowledge that any of the wrong's con- 
spired to be done, and mentioned in section 1985 of this title, are 
about to be committed, and having power to prevent or aid in prevent- 
ing the commission of the same, neglects or refuses so to do, if such 
wrongful act be committed, shall be liable to the party injured, or 
his legal representatives, for all damages caused by such wrongful 
act. which such person by reasonable diligence could have prevented: 
and such damages may be recovered in an action on the case: and 



283 



17 

any number of persons guilty of such wrongful neglect or refusal 
may be joined as defendants in the action; and if the death of any 
party be caused by any such wrongful act and neglect, the legal rep- 
resentatives of the deceased shall have such action therefor, and 
may recover not exceeding $5,000 damages therein, for the benefit 
of the widow of the deceased, if there be one, and if there be no 
widow, then for the benefit of the next of kin of the deceased. But 
no action under the provisions of this section shall be sustained 
which is not commenced within one year after the cause of action has 
accrued. 

E.S. § 1981. 

6. Revised Statutes § 722 (42 U.S.C. § 1988) . 

§ 1988. Proceedings in vindication of civil rights 

The jurisdiction in civil and criminal matters conferred on the 
district courts by the provisions of this chapter and Title 18, for the 
protection of all persons in the United States in their civil rights, 
and for their vindication, shall be exercised and enforced in con- 
formity with the laws of the United States, so far as such laws are 
suitable to carry the same into effect; but in all cases where they 
are not adapted to the object, or are deficient in the provisions nec- 
essary to furnish suitable remedies and punish offenses against law, 
the common law, as modified and changed by the constitution and 
statutes of the State wherein the court having jurisdiction of such 
civil or criminal cause is held, so far as the same is not inconsistent 
with the Constitution and laws of the United States, shall be ex- 
tended to and govern the said courts in the trial and disposition of 
the cause, and, if it is of a criminal nature, in the infliction of pun- 
ishment on the party found guilty. 

E.S. § 722. 

7. Title IX of Public Law 92-318 (20 U.S.C. § 1681-1686), as 
amended. 

§ 1681. Sex — Prohibition against discrimination ; exceptions 

(a) No person in the United States shall, on the basis of sex, be 
excluded from participation in, be denied the benefits of, or be sub- 
jected to discrimination under any education program or activity re- 
ceiving Federal financial assistance, except that : 

Classes of Educational Institutions Subject to Prohibition 

(1) in regard to admissions to educational institutions, this section 
shall apply only to institutions of vocational education, professional 
education, and graduate higher education, and to public institutions 
of undergraduate higher education ; 

Educational Institutions Commencing Planned Change in Admissions 

(2) in regard to admissions to educational institutions, this section 
shall not apply (A) for one year from June 23, 1972, nor for six years 
after June 23, 1972, in the case of an educational institution which has 
begun the process of changing from being an institution which admits 
only students of one sex to being an institution which admits students 
of both sexes, but only if it is carrying out a plan for such a change 



284 



18 

which is approved by the Commissioner of Education or (B) for seven 
years from the date an educational institution begins the process of 
changing from being an institution which admits only students of only 
one sex to being an institution which admits students of both sexes, but 
only if it is carrying out a plan for such a change which is approved by 
the Commissioner of Education, whichever is the later ; 

Educational institutions of religious organizations with contrary 

religious tenets 

(3) this section shall not apply to an educational institution which 
is controlled by a religious organization if the application of this sub- 
section would not be consistent with the religious tenets of such 
organization ; 

Educational institutions training individuals for military services or 

merchant marine 

(4) this section shall not apply to an educational institution whose 
primary purpose is the training of individuals for the military services 
of the United States, or the merchant marine ; 

Public educational institutions with traditional and continuing 

admissions policy 

(5) in regard to admissions this section shall not apply to any public 
institution of undergraduate higher education which is an institution 
that traditionally and continually from its establishment has had a 
policy of admitting only students of one sex ; and 

Social fraternities or sororities; voluntary youth service organizations 

(6) This section shall not apply to membership practices — 

(A) of a social fraternity or social sorority which is exempt 
from taxation under section 501(a) of Title 26, the active mem- 
bership of which consists primarily of students in attendance at 
an institution of higher education, or 

(B) of the Young Men's Christian Association, Young Wom- 
en's Christian Association, Girl Scouts, Boy Scouts, Camp Fire 
Girls, and voluntary youth service organizations which are so 
exempt, the membership of which has traditionally been limited 
to persons of one sex and principally to persons of less than nine- 
teen years of age. 

Preferential or disparate treatment because of imbalance in partici- 
pation or receipt of Federal benefits; statistical evidence of im- 
balance 

(1)) Nothing contained in subsection (a) of this section shall be 
interpreted to require any educational institution to grant preferen- 
tial or disparate treatment to the members of one sex on account of 
an imbalance which may exist with respect to the total number or 
percentage of persons of that sex participating in or receiving the 
benefits of any federally supported program or activity, in comparison 



285 



19 

with the total number or percentage of persons of that sex in any com- 
munity. State, section, or other area: Provided. That this subsection 
shall not be construed to prevent the consideration in any hearing 
or proceeding under this chapter of statistical evidence tending to 
show that such an imbalance exists with respect to the participation 
in, or receipt of the benefits of, any such program or activity by the 
members of one sex. 

Educational Institution Defined 

(c) For purposes of this chapter an educational institution means 
any public or private preschool, elementary, or secondary school, or 
any institution of vocational, professional, or higher education, ex- 
cept that in the case of an educational institution composed of more 
than one school, college, or department which are administratively 
separate units, such terms means each such school, college, or 
department. 

§1682. Federal administrative enforcement; report to congres- 
sional committees 

Each Federal department and agency which is empowered to ex- 
tend Federal financial assistance to any education program or activ- 
ity, by way of grant, loan, or contract other than a contract of 
insurance or guaranty, is authorized and directed to effectuate the pro- 
visions of section 1681 of this title with respect to such program or 
activity by issuing rules, regulations, or orders of general applic- 
ability which shall be consistent with achievement of the objectives 
of the statute authorizing the financial assistance in connection with 
which the action is taken. No such rule, regulation, or order shall be- 
come effective unless and until approved by the President. Compliance 
with any requirement adopted pursuant to this section may be ef- 
fected (1) by the termination of or refusal to grant or to continue 
assistance under such program or activity to any recipient as to whom 
there has been an express finding on the record, after opportunity 
for hearing, of a failure to comply with such requirement, but such 
termination or refusal shall be limited to the particular political en- 
tity, or part thereof, or other recipient as to whom such a finding has 
been made, and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found, or 
(2) by any other means authorized by law: Provided, hoioever. That 
no such action shall be taken until the department or agency concerned 
has advised the appropriate person or persons of the failure to comply 
with the requirement and has determined that compliance cannot be 
secured by voluntary means. In the case of any action terminating, or 
refusing to grant or continue, assistance because of failure to comply 
with a requirement imposed pursuant to this section, the head of the 
Federal department or agency shall file with the committees of the 
House and Senate having legislative jurisdiction over the program or 
activity involved a full written report of the circumstances and the 
grounds for such action. No such action shall become effective until 
thirty days have elapsed after the filing of such report. 



286 



20 

Public Law 92-318, Title IX, § 902, June 23, 1972, 86 Stat. 374. 

§ 16S3. Judicial review 

Any department or agency action taken pursuant to section 1682 of 
this title shall be subject to such judicial review as may otherwise be 
provided by law for similar action taken by such department or agency 
on other grounds. In the case of action, not otherwise subject to judicial 
review, terminating or refusing to grant or to continue financial assist- 
ance upon a finding of failure to comply with any requirement im- 
posed pursuant to section 1082 of this title, any person aggrieved 
(including any State or political subdivision thereof and any agency 
of either) may obtain judicial review of such action in accordance 
with chapter t of Title 5, and such action shall not be deemed com- 
mitted to unreviewable agency discretion within the meaning of sec- 
tion 701 of that Title. 

Public Law 92-318, Title IX, § 903, June 23, 1972, 8G Stat. 374. 

§ 1684. Blindness or visual impairment; prohibition against dis- 
criminaton 

Xo person in the United States shall, on the ground of blindness or 
severely impaired vision, be denied admission in any course of study 
by a recipient of Federal financial assistance for any education pro- 
gram or activity, but nothing herein shall be construed to require any 
such institution to provide any special services to such person because 
of his blindness or visual impairment. 

Public Law 92-318, Title IX, § 904, June 23, 1972, 86 Stat. 375. 
§ 1685. Authorty under other laws unaffected 

Nothing in this chapter shall add to or detract from any existing 
authority with respect to any program or activity under which Fed- 
eral financial assistance is extended by way of a contract of insurance 
or guaranty. 

Public Law 92-318, Title IX, § 905, June 23, 1972, 86 Stat. 375. 
§ 1686. Interpretation with respect to living facilities 

Notwithstanding anything to the contrary contained in this chapter, 
nothing contained herein shall be construed to prohibit any edu- 
cational institution receiving funds under this Act, from maintaining 
separate living facilities for the different sexes. 

Public Law 92-318, Title IX, § 907, June 23, 1972, 86 Stat. 375. 

8. Title VI of the Civil Riohts Act of 1964 (Publ. L. 88-352, as 
amended) , (42 U.S.C. 2000d through d-6) . 

SUBCHAPTER V. — FEDERALLY ASSISTED PROGRAMS 

§ 2000d. Prohibition against exclusion from participation in, de- 
nial of benefits of, and discrimination under Federally 

assisted programs on ground of race, color, or national 
origin 

Xo person in the United States shall, on the ground of race, color, 
or national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance. (Pub. L. 88-352, title 
VI, § 601, July 2, 1964, 78 Stat. 252.) 



287 



21 

§ 200Gd-l. Federal authority and financial assistance to programs 
or activities by way of grant, loan, or contract other 
than contract of insurance or guaranty; rules and 
regulations; approval by President; compliance with 
requirements; reports to congressional committees; 
effective date of administrative action 

Each Federal department and agency which is empowered to extend 
Federal financial assistance to any program or activity, by way of 
grant, loan, or contract other than a contract of insurance or guaranty, 
is authorized and directed to effectuate the provisions of section 2000(1 
of this title with respect to such program or activity by issuing rules, 
regulations, or orders of general applicability which shall be consist- 
ent with achievement of the objectives of the statute authorizing the 
financial assistance in connection with which the action is taken. No 
such rule, regulation, or order shall become effective unless and until 
approved by the President. Compliance with any requirement adopted 
pursuant to this section may be effected (1) by the termination of or 
refusal to grant or to continue assistance under such program or ac- 
tivity to any recipient as to whom there has been an express finding 
on the record, after opportunity for hearing, of a failure to comply 
with such requirement, but such termination or refusal shall be limited 
to the particular political entity, or part thereof, or other recipient as 
to whom such a finding has been made and, shall be limited in its 
effect to the particular program, or part thereof, in which such non- 
compliance has been so found, or (2) by any other means authorized 
by law: Provided, however, That no such action shall be taken until 
the department or agency concerned has advised the appropriate per- 
son or persons of the failure to comply with the requirement and has 
determined that compliance cannot be secured by voluntary means. In 
the case of any action terminating, or refusing to grant or continue, 
assistance because of failure to comply with a requirement imposed 
pursuant to this section, the head of the Federal department or agency 
shall hie with the committees of the House and Senate having legisla- 
tive jurisdiction over the program or activity involved a full written 
report of the circumstances and the grounds for such action. No such 
action shall become effective until thirty davs have elapsed after the 
filing of such report. (Pub. L. 88-352, title VI, § 602, July 2, 1964, 
78 Stat. 252.) 

§ 2000d-2. Judicial review ; Administrative Procedure Act. 

Any department or agency action taken pursuant to section 2000d-l 
of this title shall be subject to such judicial review as may otherwise be 
provided by law for similar action taken by such department or agency 
on other grounds. In the case of action, not otherwise subject to judi- 
cial review, terminating or refusing to grant or to continue financial 
assistance upon a finding of failure to comply with any requirement im- 
posed pursuant to section 2000(1-1 of this title, any person aggrieved 
(including any State or political subdivision thereof and any agency of 
either) may obtain judicial review of such action in accordance with 
section 1009 of Title 5, and such action shall not be deemed committed 
to unreviewable agency discretion within the meaning of that section. 
(Pub. L. 88-352, title VI, § 603, July 2, 1964, 78 Stat. 253.) 



79-586 O - 77 - 20 



288 



22 

§2000d-3. Construction of provisions not to authorize adminis- 
trative action with respect to employment practices 
except where primary objective of Federal financial 
assistance is to provide employment 

Nothing contained in this subchapter shall bo construed to authorize 
action under this subchapter by any department or agency with respect 
to any employment practice of any employer, employment agency or 
labor organization except where a primary objective of the Federal 
financial assistance is to provide employment. (Pub. L. 88-352, title 
VI, s" 604, July '2. 1964, 7S Stat. 25;$.) 

§ 2000d-4. Federal authority and financial assistance to programs 
or activities by way of contract of insurance or 
guaranty 

Nothing in this subchapter shall add to or detract from any exist ing 
authority with respect to any program or activity under which Federal 
financial assistance is extended by way of a contract of insurance or 
guaranty. (Pub. L. 88-352, title VI. §605, July 2, 1964, 78 Stat. 253.) 

§ 2000-5. Prohibited deferral of action on applications by local 
educational agencies seeking federal funds for alleged 
noncompliance with Civil Rights Act. 

The Commissioner of Education shall not defer action or order ac- 
tion or order action deferred on any application by a local educational 
agency for funds authorized to be appropriated by this Act. by the 
Elementary and Secondary Education Act of 1065, by the Act of Sep- 
tember 30. 1950 (Public Law 874, Eighty-first Congress), by the Act 
of September '23. 1950 (Public Law 815, Eighty-first Congress), or by 
the Cooperative Research Act, on the basis of alleged noncompliance 
with the provisions of this subchapter for more than sixty days after 
notice is given to such local agency of such deferral unless such local 
agency is given the opportunity for a hearing as provided in section 
2000d— 1 of this title, such hearing to be held within sixty days of such 
notice, unless the time for such hearing is extended by mutual consent 
of such local agency and the commissioner, and such deferral shall not 
continue for more than thirty days after the close of any stich hearing 
unless there has been an express finding on the record of such hearing 
that such local educational agency has failed to comply with the pro- 
visions of this subchapter: Provided. That, for the purpose of de- 
termining whether a local educational agency is in compliance with 
this subchapter, compliance by such agency with a final order or judg- 
ment of a Federal court for the desegregation of the school or school 
system operated by such agency shall be deemed to be in compliance 
with this subchapter, insofar as the matters covered in the order or 
judgment are concerned. (Pub. L. 89-750, title I, § 182, Xov. 3, 1966. 
80 Stat. 1209; Pub. L. 90-247, title I, § 112, Jan. 2, 1968, 81 Stat 787). 

§ 2000d-6. Policy of United States as to application of nondis- 
crimination provisions in schools of local educational 

agencies 

(a) Declaration of uniform policy. 

It is the policy of the United States that guidelines and criteria 
established pursuant to title VI of the Civil Rights Act of 196-1 and 



289 



23 

section 182 of the Elementary and Secondary Education Amendments 
of 1966 dealing with conditions of segregation by race, whether de jure 
or de facto, in the schools of the local educational agencies of any State 
shall be applied uniformly in all regions of the United States what- 
ever the origin or cause of such segregation. 

(b) Nature of uniformity 

Such uniformity refers to one policy applied uniformly to de jure 
segregation wherever found and such other policy as may be provided 
pursuant to law applied uniformly to de facto segregation wherever 
found. 

(c) Prohibition of construction for diminution of obligation for 

enforcement or compliance with nondiscrimination require- 
ments 

Nothing in this section shall be construed to diminish the obligation 
of responsible officials to enforce or comply with such guidelines and 
criteria in order to eliminate discrimination in federally assisted pro- 
grams and activities as required by title VI of the Civil Rights Act 
of 1964. 

(d) Additional funds 

It is the sense of the Congress that the Department of Justice and 
the Department of Health, Education, and Welfare should request 
such additional funds as may be necessary to apply the policy set forth 
in this section throughout the United States. (Pub. L. 91-230, § 2. Apr.. 
13, 1970, 84 Stat. 121.) 

9. ". . . any civil action or proceeding to enforce or charging a viola- 
tion of, a provision of the United States Internal Revenue Code, . . ." 
[26 U.S.C. § 1 et seq.] 



APPENDIX B 



Citations of Pre-Alyeska Opinions Awarding Attorney's Fees in 
Civil Eights Cases Under the "Private Attorney General" Con- 
cept 

Senate Report No. 94-1011, to accompany S. 2278, the Civil Rights 
Attorneys' Fees Awards Act of 1976, contains a footnote referring to 
but not citing by name a large number of civil rights cases listed in 
two other sources. The passage on page 4 is as follows : 

"Before May 12, 1975, when the Supreme Court handed down its 
decision in Alveska Pipeline Service Co. v. Wilderness Society, 421 
U.S. 240 (1975), many lower Federal courts throughout the Nation 
had drawn the obvious analogy between the Reconstruction Civil 
Rights Acts and these modern civil rights acts, and, following Con- 
gressional recognition in the newer statutes of the 'private attorney 
general' concept, were exercising their traditional equity powers to 
award attorneys' fees under early civil rights laws as well." 3 

The cited pages of the 1973 Senate hearings refer to a number of pre- 
Alyeska decisions involving attorneys' fees in cases arising under some 
of the statutory provisions listed in P.L. 559, particularlv under 42 
U.S.C. §§ 1981, 1982, and 1983. These cases include a wide variety of 
race and non-race cases, such as cases involving election redisricting; 
school desegregation; teacher dismissal or discipline; student dis- 
cipline ; police misconduct ; first amendment restrictions ; racial hous- 
ing segregation; racial and sexual jury discrimination; employment 
discrimination ; welfare cases ; treatment of inmates in mental hospitals 
or prisons ; discharge of public employees ; and enforcement of federal 
statutory rights under, e.g., welfare, urban renewal and highway re- 
location laws. 



3 These civil rights cases are too numerous to cite here. See, e.g., Sims v. Amos, 340 
F. Supp. 691 (M.D. Ala. 1972). aff'd. 409 U.S. 942 (1972) ; Stanford Daily v. Zurcher, 366 
F. Supp. 18 (N.D. Cal. 1973) ; and cases cited in AJyeska Pipeline, supra, at n. 46. Many 
of the relevant cases are collected in "Hearings on the Effect of Legal Fees on the Adequacy 
of Representation before the Subcommittee on Representation of Citizen Interests of 
the Senate Committee on the Judiciary." 93d Cong., 1st sess., pt. Ill, at pp. 888-1024, 
and 1060-62. 

The cases listed in footnote 46 of the Alyeska opinion are these : 

Soma v. Travisono, 512 F.2d 1137 (1st Cir. 1975) ; Hoitt v. Vitek, 49o F.2d 219 (Cal. 
1974) ; Knight v. Auciello, 453 F.2d 852 (Cal. 1972) : Cornist v. Richland Parish School 
Board, 495 F.2d 189 (CA5 1974) : Fairley v. Patterson, 493 F.2d 598 (CAS 1974) : Cooper 
v. Allen, 467 F.2d 836 (CA5 1972) ; Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 
1971) : Taylor v. Perini, 503 F.2d 899 (6th Cir. 1974) ; Morales v. Haines, 4«6 F.2d 880 
(CA7 1973) : Donahue v. Staunton. All F.2d 475 (CA7 1972). cert, denied, 410 U.S. 955 
(1973) : Fowler v. Schwarzwalder, 498 F.2d 143 (CA8 1974) : Brandenhurger v. ■™omrt*on. 
494 F.2d 885 (7th Cir. 1974) ; La Raza Unida v. Yolpe, 57 FRD 94 (N.D. Cal. 1972) ; 
Bradley v. School Board of the City of Richmond, 472 F.2d 318 (CA4 1972), vacated on 
other grounds. 416 U.S. 696 (1974) ; Bridgeport Guardians, Inc. v. Members of Bridgeport 
Civil Service Comm'n, 497 F.2d 1113 (CA2 1974). 

(291) 



APPENDIX C 



Index of Key Kecorded Votes on S. 2278 
Amendments and Final 



Consideration, Cloture, 
Passage 1 



SENATE 



S. 2278 


Called up by— 


At page— 


Result 


At page— 


Consideration 


Robert C. Byrd 


[S16250], 17 
[S16250], 18 
[S170531, 203 


Agreed to 


[S16250], 18 


Cloture.. 


Robert C. Byrd 


Passed.. 


IS16478], 127 


Passage 


The Presiding Officer. 


Passed 


[S17053],204 










Amendment No.— 


Introduced by— 


At page- 


Result 


At page— 



2347 (was No. 469). 

470 

471 

2378 

472 

473 

2350 

475 

476 

2371 

2388 

2409 

2392 

2391 

2385 

2390 

2393 

2440 

2411 

2419 



Kennedy.. 

Helms 

Allen 

Bumpers. . 

Allen 

Helms 

Goldwater. 

Allen 

Thurmond. 

Allen 

Allen 

Thurmond. 

Helms 

Allen 

Allen 

Scott 

Helms.... 

Helms 

Helms 

Allen 



[S16251], 21 

S16257], 34 
S16261 . 45 
IS16280], 63 
S16430, 71 
S16433, 80 
S16445], 84 
[S16448, 89 
IS16451], 94 
[S16467], 108 
[S165671.146 
[S16662J.163 
[S166621, 165 
[S166651, 174 
[S168761, 176 
(S168811, 181 
[S16882], 183 
[S16883], 186 
[S16884], 189 
[S17049), 193 



Not tabled [S16256], 33 

Adopted [S17051], 198 

Tabled [S16261], 44 

Tabled [S16263J, 52 

No vote 

Defeated [S16430], 73 

Tabled [S164341, 84 

Adopted IS16482], 132 

Tabled [S16451], 93 

Tabled [S16457], 108 

Tabled [S16490], 136 

Tabled... [S16657], 151 

Tabled [S16662], 164 

Tabled 1S16664], 169 

Tabled 1S16666), 175 

Tabled [S16877], 177 

Tabled (S16881[, 182 

Tabled [S16883], 186 

Tabled |S16883],187 

Tabled [S16884J, 191 

Adopted [S17050], 196 



HOUSE OF REPRESENTATIVES 



Called up by- 



At page— Result 



At page- 



H. Res. 1591: Consideration Boiling... 

S. 2278: Consideration Drinan... 

Motion to recomit Ashbrook. 

Final passage Drinan... 



[H12150[, 235 Adopted [H12156], 251 

[H12158], 251 Called up [H12158], 251 

IH12166], 272 Rejected [H121671, 275 

IH12166J, 271 Passed [H12167], 278 



WHITE HOUSE 

S. 2278 was signed by President Ford on Oct. 19, 1976 P.L. 94-559, 90 Stat. 2641. 



Congressional Record pages (daily edition) as shown in brackets. 

(293) 



APPENDIX D 



Texts of Introduced Amendments to S. 2278 1 

SENATE 

Amendment No. 2347 (469), introduced by Senator Edward M. 
Kennedy 

Strike out all after the enacting clause and insert in lieu thereof the 
following : 

That this Act may be cited as "The Civil Rights Attorney's Fees 
Awards Act of 1976 , \ 

Sec. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is 
amended by adding the following : "In any action or proceeding to en- 
force a provision of sections 1977, 1978, 1979, 1980, and 1981 of the 
Revised Statutes, title IX of Public Law 92-318, or title VI of the 
Civil Rights of 1964, the court, in its discretion, may allow the prevail- 
ing party, other than the United States, a reasonable attorney's fee as 
part of the costs." 

Amendment No. 470, introduced by Senator Jesse Helms 

Sec. 3. The Congress finds that serious inequities and inequalities 
exist between — 

( 1 ) the Federal Government ; and 

(2) individuals, companies, unions, other organizations and State 
and local governments in terms of the relative ease with which each is 
able, without economic hardship, to prevail or secure vindication in 
civil and criminal actions in the courts and in administrative proceed- 
ings. It is the purpose of the Congress in this Act to diminish these 
inequities and inequalities by providing for the payment by the United 
States of attorney fees, expert witness fees, and other costs in specified 
situations. 

Sec. 4. (a) Section 2412 of title 28, United States Code, is amended 
to read as follows : 

"§ 2412. Attorney and witness fees and costs 

"(a) Except as otherwise provided by subsections (b) and (c) of 
this section and in section 2678 of this title, a judgment for costs, as 
specified in section 1920 of this title (but not including the fees and 
expenses of attorneys) , may be awarded to the prevailing party in any 
civil action brought by or against the United States in any court having 
jurisdiction of such action. 



1 This appendix contains only those amendments to S. 2278 which were introduced and 
voted on during the floor debates in the Senate and House of Representatives. 
See appendix C for the dates of introduction and the pages containing the debates and 
votes on the amendments. 

(295) 



296 



"(b) A judgment for costs as specified in section 1920 of this title, 
for the reasonable expenses of any witnesses or expert witnesses, for 
the reasonable cost of any studio, analyses, engineering reports, tests 
or projects which the court rinds necessary to litigation of the action 
and for a reasonable attoney fee, based upon the actual time expended 
by any attorney of a party and his or her staff in advising and repre- 
senting a party (at prevailing rates for such services, including any 
reasonable risk factor component ) . may be awarded to any party, other 
than the United States or any agency Or official thereof, who prevails 
in any civil action including an action for judicial review of agency 
action brought by or against the United States or any agency or oliicial 
thereof in any court having jurisdiction of such action. 

"(c) In actions, including actions for judicial review of agency 
action, instituted by or against the United States or any agency or 
oliicial thereof, in which a party other than the United States or any 
agency or official thereof — 

" (1) prevails partially, such party may be awarded a judgment 
for costs and fees, as specified in subsection (b), to the extent to 
which he prevails. 

u (2) does not prevail, such party may be awarded a judgment 
for costs and fees, as specified in subsection (b), in any case in 
which such an award would be in the interest of justice. 

"(d) Any amount awarded for costs and fees shall be in addition to 
the compensation, if any. awarded in any judgment. 

u (e) A judgment for costs and fees shall be paid in the form and 
manner provided, in sections 3414 and 2517 of this title, for the pay- 
ment of judgments against the United States.". 

(b) The analysis of chapter 161 of title 28 of the United States Code 
is amended by amending the item relating to section 2412 of said title 
to read as follows : 

"2412. Attorney and witness fees and costs." 

Sec. 5. Subsection (a) of section 2517 of title 28, United States Code, 
is amended to read as follows : 

u (a) Any final judgment and any final judgment for costs and fees 
which is rendered by the Court of Claims against the United States 
shall be paid out of any general appropriation therefor, on presenta- 
tion to the General Accounting Office of a certification of such judg- 
ment, by the clerk and the chief judge of such court.". 

Sec. 6. Section 2678 of title 28, United States Code, is amended to 
read as follows : 

" (a) If any judgment is rendered, or if any settlement, award, com- 
promise or recommendation in favor of any party other than the 
United States is made, after the United States or a Federal agency has 
received notice that a party has retained a specified attorney, such 
party shall be awarded a reasonable attorney's fee, based upon the 
actual time expended by such attorney and his or her staff in advising 
and representing such party (at prevailing rates for such services, in- 
cluding any reasonable risk factor component) and all costs (includ- 
ing witness fees, studies, analyses, engineering reports, tests and proj- 
ects) necessary to litigation. In any other case, the court may award 
such costs and fees as are, in its discretion, in the interests of justice. 



297 



"(b) Any amount awarded under this section for costs and fees 
shall be in addition to the compensation awarded in any judgment, 
settlement, award, compromise, or recommendation.". 

Sec. 7. (a) Subchapter I of chapter 5 of title 5 of the United States 
Code is amended by adding at the end thereof the following new 
section : 

"§ 504. Costs and fees of parties 

"(a) A party other than the United States or any agency or official 
thereof participating in an agency proceeding shall be granted by the 
agency conducting the proceeding and said agency may pay, an award 
for fees and costs incurred in order to participate in the proceeding 
if: 

"(1) said party is successful in his defense against imposition 
of a sanction ; 

"(2) in a proceeding in which the agency is a moving party, he 
is successful in opposing issuance of an order, or in proposing an 
amendment to an order, which — 

" ( A) affects the freedom of said party ; 
"(B) withholds relief from said party ; 
"(C) imposes a penalty or fine on said party ; 
"(D) requires the destruction, taking, seizure or withhold- 
ing of property of said party ; 

"(E) assesses damages, reimbursement, restitution, com- 
pensation, costs, charges, or fees against said party ; 

"(F) requires, revokes, or suspends a license of said party ; 

or 

"(G) otherwise compels or restricts said party ; or 
"(3) a review or appeal is determined substantially in favor of 
the party which appeals a decision or which is subject to the deci- 
sion reviewed. 

"(b) As used in subsection (a) of this section, an 'award for fees 
and costs' shall include the reasonable expenses of witnesses and expert 
witnesses and the reasonable cost of any studies, analyses, engineering 
reports, tests, or projects necessary to determination of the proceeding 
together with a reasonable attorney's or agent's fee based upon the 
actual time expended by such attorney or agent and his or her staff in 
advising or representing a party (at prevailing rates for such services, 
including any reasonable risk factor component).". 

(b) The analysis of subchapter I of chapter 5 of title 5, United 
States Code, is amended by adding at the end thereof the following 
new item : 

"504. Costs and fees of parties.". 

Sec. 8. (a) Chapter 201 of title 18, United States Code, is amended 
by adding at the end thereof the following new section : 

"§ 3013. Fees and costs of defendants 

"(a) A defendant in a criminal case shall be granted by the court 
having jurisdiction of the case and the United States may pay, an 
award to compensate said defendant for the reasonable attorney fees 
and costs incurred by him in his defense against a charge at trial and 
on any appeals if : 



298 



"(1) said defendant pleads not guilty to said charge and 
" (A) said defendant is found not guilty, or 
"(B) the charge against said defendant is dismissed; or 
"(2) said defendant is found guilty at trial and said finding is 
set aside on appeal. 
"(b) No award shall be made pursuant to paragraph (2) of subsec- 
tion (a) of this section unless the prosecution certifies to the court that 
no further appeal will be made or unless the time for further appeal 
has expired. 

"(c) No award shall be made except on motion of the defendant 
with notice to the prosecution.". 

(b) The analysis of chapter 201 of title 18, United States Code is 
amended by adding at the end thereof the following new item : 

"3013. Fees and costs of defendants.". 

Amendment No. 471, introduced by Senator James B. Allen 

On line 6 after the comma following the word "statutes" add the fol- 
lowing : "title IX of Public Law 92-318." 

Amendment No. 2378, introduced by Senator Dale Bumpers 

On page 1, line 10, strike out the quotation marks and the period 
and insert in lieu thereof a period and the following : 

"For purposes of this section, a prevailing party who is a defendant 
in such an action or proceeding may be awarded a reasonable at- 
torney's fee, at the Court's discretion, even if such defendant cannot 
show that the plaintiff bringing such action or proceeding acted in. 
bad faith, frivolously, vexatiously, or for the purpose of harassing such 
defendant.". 

Amendment No. 472, introduced by Senator James B. Allen 

To amend the Kennedy substitute to S. 2278 on line 8, by striking 
the comma after 1964 and add the following : "or where suit is brought 
by the IRS against any person asserting the existence of tax liability 
to the government on the part of such person and said suit is found 
in such action to be without merit or frivolous.". 

Amendment No. 473, introduced by Senator Jesse Helms 

On page 1, line 8, after "court" insert the following : ", upon a show- 
ing or finding of bad faith of the losing party,". 

On page 1, line 9, after "United States," insert the following: "or 
any territory or possession thereof, or any State of the United States 
or any political subdivision thereof including special purpose units 
of general local government,". 

Amendment No. 2350, introduced by Senator Barry Goldwater 
At the end of the bill, insert the following new section : 
"Sec. . (a) Subchapter A of chapter 65 of the Internal Revenue 

Code of 1954 is amended by adding at the end thereof the following 

new section : 

" 'SEC. G4 08. REIMBURSEMENT OF TAXPAYER'S EXPENSES IX CERTAIN CASES 

" '(a) General Rule. — If — 

" '(1) the Secretary or his delegate subjects the return of a tax- 
payer to a field audit and after such audit (A) proposes a de- 



299 



ficiency or overpayment of income tax imposed by chapter 1, 
which the taxpayer accepts in writing, on a form specified by the 
Secretary or his delegate, or (B) notifies the taxpayer that there 
is no change in his tax liability ; 

" '(2) subsequent to the taxpayer's written acceptance of such 
proposed deficiency or overpayment, or the taxpayer's receipt 
of a notification that there is no change in his tax liability, the 
Secretary or his delegate proposes another deficiency or reduction 
in the overpayment of such tax from the same year with respect 
to which such acceptance has already been made, or such notifica- 
tion has already been received ; and 

" '(3) the deficiency in such tax for such year finally obtained, 
or the overpayment finally allowed, is not more favorable to the 
Secretary or his delegate, than the deficiency on overpayment 
which the taxpayer had already accepted, or the tax liability re- 
flected on the return for which notification had already been re- 
ceived by the taxpayer, then the Secretary or his delegate shall 
reimburse the taxpayer for all expenses incurred by the taxpayer 
administratively or judicially (including, but not limited to, court 
costs and legal and accounting fees and expenses) in connection 
with the deficiency or reduction in overpayment proposed subse- 
quent to such original acceptance or notification. 
"'(b) Procedure for Reimbursement. — Expenses incurred by the 
taxpayer which are to be reimbursed by the Secretary or his delegate 
pursuant to subsection (a) shall be deemed, for the purposes of 
section 6511 (a) , a tax paid by the taxpayer on the date his tax liability 
for such year is finally determined (whether determined administra- 
tively or judicially). For purposes of this title and section 1346(a) (1) 
of title 28, United States Code, the amount of tax so deemed paid by 
the taxpaver shall constitute an overpayment.' 

"(b) The table of sections for such subchapter A is amended by 
adding at the end thereof the following new item : 

" 4 SEC. 64 8. REIMBURSEMENT OF TAXPAYER'S EXPENSES IN CERTAIN CASES.'. 

"(c) The amendments made by this section shall apply only with re- 
spect to proposals of deficiencies or reductions in overpayments de- 
scribed in section 6408(a) (2) of the Internal Revenue Code of 1954 
(as added bv subsection (a) ) notification of which is made on or after 
the date of the enactment of this Act." 

Amendment No. 4.75, introduced by Senator James B. Allen 
Strike lines 1 and 2 and insert in lieu thereof the following: 
"That this act may be cited as the Tunney-Kennedy Civil Rights 

Attorneys Relief Act of 1976." 

Amendment No. 476, introduced by Senator Strom Thurmond 
On page 1, immediately after line 9, add the following new section : 
"Sec. 2. Notwithstanding any other provision of law. no court shall 
award an attorney fee in any action involving the transportation of 
students in order to carry out an order or a plan of racial desegrega- 
tion of any public school or local educational agency.". 

Amendment No. 2371, introduced by Senator James B. Allen 
Strike lines 1 and 2 and substitute the following : 



300 



"That this act may bo cited as the Tunney-Kennedy-Abourezk Civil 
Rights Attorneys' Fees Awards Act of 19*76.". 

Amendment No. 2388. introduced by Senator James B. Allen 

On page 1, line 9, strike the word "costs," and substitute in lieu 
thereof the following: "costs, but in no evenl shall any court of the 
United States order or otherwise require any officer of the United 
States or any State or local public official to pay to a prevailing party 
a reasonable attorney's Pee as part of the costs except in the event such 
officer of State or local public official has acted in a contumacious or 
vexatious manner.". 

Amendment No. 2£09, introduced by Senator Strom. Thurmond 

On page 1. line 10. insert the following : "If the court in its discretion 
finds that the action or proceeding is frivolous, the court will order 
the defendant person instituting the action or proceeding to pay a rea- 
sonable attorney's fee to the other party or parties as part of the 
costs.". 

Amendment No. 2392, introduced by Senator Jesse Helms 

On page 1, line 10. strike out the word "costs" and substitute in lieu 
thereof the following: "costs, but in the event the prevailing party is 
a defendant and the court finds that the plaintiff acted in bad faith 
in initiating, or contumaciously or vexatiously in prosecuting any ac- 
tion or proceeding to enforce a provision of sections 1977, 1978, 1979, 
1980, and 1981 of the Revised Statutes, or of title II, VI. or VII of the 
Civil Rights Act of 1964. or of the Voting Rights Act of 1965; then 
the court shall award to such prevailing party defendant, other than 
the United States, a reasonable attorney's fee as part of the costs.". 

Amendment No. 2391. introduced by Senator James B. Allen 
At the end of the bill add the following new section : 
"Sec. — . Section 4(a) of Public Law 92-261 is amended by striking 
out the words 'or any other equitable relief as the court deems appro- 
priate." and substitute in lieu thereof the following: 'or any other 
equitable relief as the court deems appropriate, except that in no event 
shall such relief include the award of an attorney's fee.' ". 

Amendment No. 2385. introduced by Senator James B. Allen 

On page 1, line 5. after the word "1979," strike out the words "1980, 
and 1981" and substitute in lieu thereof the following: "and 1980". 

Amendment No. 2390. introduced by Senator William L. Scott 

On page 1. line 9. after "costs" insert the following: ". except that 
notwithstanding the provisions of section 204(b) or 706 (k) of the 
Civil Rights Act of 1964 or section 14(e) of the Voting Rights Act of 
1965. no court of the United States shall require any officer of the 
United States or any State or political subdivision of any State or any 
public official of any State or political subdivision of any State to gay 
to a prevailing party an attorney's fee as part of the costs of any action 
brought under title II or VII of the Civil Rights Act of 1964 or under 
the Voting Rights Act of 1965.". 



301 



Amendment No. 2393. introduced by Senator Jesse Helms 

On page 1. line 10, strike out the word "costs," and substitute in lieu 
thereof the following: "costs, but in the event the prevailing party is 
a defendant in any action or proceeding to enforce a provision of sec- 
tions 1077. 1078. 1070. 1980. and 1981 of the Revised Statutes, or of 
title II. VI. or VII of the Civil Eights Act of 1961, or of the Voting 
Rights Act of 1065. then the court shall award to such prevailing party 
defendant, other than the United States, a reasonable attorney's fee 
as part of the costs.''. 

Amendment No. 24W> introduced by Senator Jesse Helms 
On page 1. line 5, delete the following: ''or proceeding". 

Amendment No. 24-11* introduced by Senator Jesse Helms 
On page — . line 6, delete the following ,, 1981". 

Amendment No. 24-19. introduced by Senator James B. Allen 

On page 1. line 7. after "9:2-318." insert the following: "or in any 

civil action or proceeding, by or on behalf of the United States of 

America, to enforce, or charging a violation of. a provision of the 

United States Internal Revenue Code.". 

HOUSE OF REPRESENTATIVES 

Motion to Recommit ; Rep. John 31. Ashbrooh 

Mr. Ashbrook moves to recommit the bill. S. 2278 to the Committee 
on the Judiciary with instructions that the bill be reported back forth- 
with with the following amendment : 

"Sec. 3. The provisions of this act shall take effect upon enactment 
and shall be applicable to cases filed only after the effective date of this 



APPENDIX E 



Federal Attorney's Fees Statutes 

1. Federal Contested Election Act— -2. U.S.C. § 396. 

"The committee (on House Administration of the House of Repre- 
sentatives) may allow any party reimbursement from the contingent 
fund of the House of Representatives of his reasonable expenses of 
the contested election case, including reasonable attornevs fees. . . ." 

2. Freedom of La formation Act— -5 U.S.C. § 552(a) (4) (E). 

"The court may assess against the United States reasonable attorney 
fees and other litigation costs reasonably incurred in any case under 
this paragraph in Avhich the complainant has substantially- prevailed." 

3. Privacy Act— 5 U.S.C. § 552a (g) (3) (B). 

"The court may assess against the United States reasonable attorney 
fees and other litigation costs reasonably incurred in any case under 
this paragraph in which the complainant has substantially prevailed." 

4. Federal Employment Compensation for Work Injuries — 5 U.S.C. 
§ 81.27. 

"A claim for legal or other services furnished in respect to a case, 
claim, or award for compensation under this subchapter is valid only 
if approved bv the Secretary (of Labor) ." 

5. Packers and Stockyards Act— 7 U.S.C. § 210 (f) . 

"If the defendant does not comply with an order for the payment 
of money within the time limit in such order, the complainant, or any 
person for whose benefit such order was made . . . (may sue in a 
United States District Court). ... If the petitioner finally prevails, 
he shall be allowed a reasonable attorney's fee to be taxed and collected 
as a part of the costs of the suit." 

6. Perishable Agricultural Commodities Act— -7 U.S.C. § 499g(b) . 
"If any commission merchant, dealer, or broker does not pay the 

reparations award within the time specified in the Secretary (of Agri- 
culture's) order, the complainant or any person for whose benefit such 
order was made . . . (may sue in a United States District 
Court). ... If the petitioner finally prevails, he shall be allowed a 
reasonable attorney's fee, to be taxed and collected as a part of the 
costs of the suit." 

7. 7 U.S.C. §499g(c). 

"Either party adversely affected by the entry of a reparation order 
by the Secretary may . . . appeal therefrom to the district court of 
the United States. . . . Appellee shall not be held liable for costs in 
said court if appellee prevails he shall be allowed a reasonable attor- 
ney's fee to be taxed and collected as a part of his costs." [sic] 

8. Agricultural Unfair Trade Practices— 7 U.S.C. § 2305(a). 
"Whenever any handler has engaged ... in any act or practice 

prohibited by section 4, a civil action for preventative relief . . . may 

(303) 



79-586 - 77 - 21 



304 



be instituted by the person aggrieved. Tn any action commenced pur- 
suant hereto, the court, in its discretion, may allow the prevailing 
part v a reasonable attorneys' fee as part of the costs." 
0.7U.S.C. § 2305(c). 

••Any person injured in his business or property by reason of any 
violation of . . . section 4 of this Act may sue therefor in the appro- 
priate dist rid court of the United States. . . . and shall recover damages 
sustained. In any action commenced pursuant to this subsection, the 
court may allow the prevailing party a reasonable attorney's fee as a 
part of the costs." 

10. Plant Variety < 1 ct— 7 U.S.C. § 2565. 

"The court in exceptional cases may award reasonable attorney fees 
to the prevailing party." 

11. Bankruptcy Act— 11 U.S.C. § 104(a) (1). 

"The debts to have priority . . . shall be . . . one reasonable attor- 
ney's fee, for the professional services actually rendered, irrespective of 
the number of attorneys employed, to the bankrupt in voluntary and 
involuntary cases, and to the petitioning creditor in involuntary 
cases. . . ." 

12. 11 U.S.C. § 109. 

"Whenever a petition is filed to have a person adjudged a bankrupt 
and an application is made to have a receiver or a marshal take charge 
of the property of the bankrupt, or any part thereof, prior to the adju- 
dication, the applicant shall file in the same court a bond . . . condi- 
tioned to indemnify the bankrupt for such costs, counsel fees, expenses, 
and damages as may be occasioned bv such seizure . . ." 

13. Railroad Reorganization Act— 11 U.S.C. § 205(c) (12). 

"Within such maximum limits as are fixed by the (Interstate Com- 
merce) Commission, the judge may make an allowance, to be paid out 
of the debtor's estate, for the actual and reasonable expenses (including 
reasonable attorney's fees) incurred in connection with the pro- 
ceeding. . . ." 

14. Corporate Reorganization Act — 11 U.S.C. 641-644. 

^ 641 — "The judge may allow . . . reasonable compensation for 
services rendered . . . (3) by the trustee and other officers, and the 
attorneys for any of them; (4) by the attorney for the debtor; and 
(5) by the attorney for the petitioning creditors. . . ." 

§ 642 — "The judge may allow reasonable compensation for services 
rendered ... by the attorney or agents for any of the foregoing except 
the Securities and Exchange Commission." 

15. Bankruptcy Act — Corporate Reorganization Act (continued). 
§ 643 — "The judge may allow reasonable compensation for services 

rendered ... by creditors and stockholders, and the attorneys for any 
of them. . . ." 

§ 644 — "Where a petition is filed under section 127 of this Act. the 
judge may allow, if not already allowed, reasonable compensation for 
services rendered. . . . (1) by a marshal, receiver, or trustee . . ., and 
the attorneys for any of them; (2) by the attorney for the petition- 
ing creditors ; (3) bv the attorney for the bankrupt. . . ." 

16. Federal Credit Union Act— -12 U.S.C. § 1786(o). 

"Any court having jurisdiction of any proceeding instituted under 
this section by an insured credit union or a director, officer, or commit- 



305 



tee member thereof may allow to any party such reasonable expenses 
and attorneys' fees as it deems just and proper, and such expenses and 
fees shall be paid bv the credit union or from its assets." 

17. Bank Holding Company Act— 12 U.S.C. § 1975. 

'•Any person who is injured in his business or property by reason of 
anything forbidden in section 1972 of this title may sue therefor in any 
district court of the United States . . . and shall be entitled to re- 
cover ... a reasonable attorney's fee." 

18. Clayton Act— 15 U.S.C. §15. 

"Any person who shall be injured in his business or property by 
reason of anything forbidden in the antitrust laws may sue therefor 
in any district court of the United States . . . and shall recover . . . 
a reasonable attorney's fee." 

19. Antitrust Parens Patriae Act (Public Law 94-435. § 301)— 15 
U.S.C. §15c(a)(2). 

"The court shall award the State as monetary relief threefold the 
total damage sustained as described in paragraph (1) of this subsec- 
tion, and the cost of suit, including a reasonable attorney's fee." 

20. 15 U.S.C, §15c(d)(2). 

"(T)he court may. in its discretion, award a reasonable attorney's 
fee to a prevailing defendant upon a finding that the State attorney 
general has acted in bad faith, vexatiously, wantonly, or for oppressive 
reasons." 

21. Federal Trade Commission Improvement Act — 15 U.S.C. §57 
a(h)(l). 

"The (Federal Trade) Commission may. pursuant to rules pre- 
scribed by it. provide compensation for reasonable attorneys fees, ex- 
pert witness fees, and other costs of participating in a rulemaking pro- 
ceeding under this section. . . ." 

22. Unfair Competition Act— 15 U.S.C. § 72. 

"Any person injured in his business or property by reason of any vio- 
lation of, or combination or conspiracy to violate, this section, may 
sue therefor in the district court of the United States . . . and shall 
recover ... a reasonable attorney's fee." 

23. Securities Act of 1933—15 U.S.C. § 77k(a). 

"In any suit under this or any other section of this title the court 
may, in its discretion, require an undertaking for the payment of the 
costs of such suit, including reasonable attorney's fees. . . ." 

24. Trust Indenture Act—\» U.S.C. § 77ooo(e). 

"The indenture to be qualified may contain provisions to the effect 
that all parties thereto, including the indenture security holders, agree 
that the court may in its discretion . . . assess reasonable costs, in- 
cluding reasonable attorneys' fees, against any party litigant. . . ." 

25. 15 U.S.C. §77www(a). 

"(T)he court may. in its discretion . . .. assess reasonable costs, in- 
cluding reasonable attorneys' fees, against either party litigant." 

26. Jt id lers Eall-Mark Act—lo U.S.C. § 298 (b) . 

"Any competitor, customer, or competitor of a customer . . . may 
sue . . . and shall recover ... a reasonable attorney's fee." 

27. 15 U.S.C.§ 298(c): 

"Any duly organized and existing trade association . . . may 
sue . . . and if successful shall recover ... a reasonable attorney's 
fee." 



306 



28. 15 U.S.C. § 298(d). 

"Any defendant against whom a civil action is brought . . . shall 
be entitled to recover ... a reasonable attorney's fee, in the event 
such action is terminated without a finding by the court that such 
<le fendant is or has been in violation of sect ions 294 to 300 of this title." 

29. Trademark Act— lb U.S.C. § 11 1 7. 

"The court in exceptional cases may award reasonable attorney fees 
to the prevailing party." 

30. National Traffic and Motor Vehicle Safety Act of 1966— lb 
U.S.C. § 1400(b). 

u In the event any manufacturer or distributor shall refuse to com- 
ply with the requirements of paragraphs (1) and (2) of subsections 
(a) of this section, then the distributor or dealer, as the case may be, 
to whom such nonconforming vehicle or equipment has been sold may 
bring suit against such manufacturer or distributor . . . and shall 
recover . . . reasonable attorneys' fees." 

31. Truth in Lending Act (as amended by Public Law 94-240, § 4, 
Consumer Leasing Act)— 15 U.S.C. § 1640 (a) . 

"(A)ny creditor who fails to comply with any requirement under 
this part or (the Fair Credit Billing Act or Consumer Leasing Act ) 
with respect to any person is liable to such person in an amount equal 
to the sum of ... a reasonable attorney's fees as determined by the 
court." 

32. Fair Credit Reporting Act— lb U.S.C. § 1681n. 

"Any consumer reporting agency or user of information which 
willfully fails to comply with any requirement imposed under this 
subchapter with respect of any consumer is liable to that consumer 
in an amount equal to the sum of . . . reasonable attorney's fees as 
determined by the court." 

33. 15 U.S.C. § 1681o. 

"Any consumer reporting agency or user of information which 
is negligent in failing to comply with any requirement imposed under 
this subchapter with respect to any consumer is liable to that consumer 
in an amount equal to the sum of . . . reasonable attorney's fees as 
determined by the court." 

34. Equal Credit Opportunity Act (as amended bv Public Law 
94-239)— 15 U.S.C. §1691e(d). 

"In the case of any successful action under subsection (a), (b), or 
(c), the costs of the action, together with a reasonable attorney's fee 
as determined by the court, shall be added to any damages awarded 
by the court under such subsection." 

35. Motor Vehicle Information and Cost Savings Act — 15 U.S.C. 
§ 1918(a). 

"Any owner of a passenger motor vehicle who sustains damage as 
a result of a motor vehicle accident because such vehicle did not 
comply with any applicable Federal bumper standard under this 
subchapter may bring a civil action against the manufacturer of that 
vehicle ... to recover the amount of those damages, and in the case 
of any successful action to recover that amount, costs and reasonable 
attorneys' fees shall be awarded to that owner." 

36. Odometer Requirements — 15 U.S.C. § 1989(a). 



307 



"Any person who, with intent to defraud, violates any requirement 
imposed under this subchapter shall be liable in an amount equal to 
the sum of . . . in the case of any successful action to enforce the 
foregoing liability, the costs of the action together with reasonable 
attorney fees as determined by the court." 

37. Consumer Product Safety Act (as amended bv Public Law 
94-284, § 10)— 15U.S.C. § 2059(e) (4). 

"In any action under this subsection the court may in the interest of 
justice award the costs of suit, including reasonable attorneys' fees 
and reasonable expert witnesses' fees. Attorneys' fees may be awarded 
against the United States (or any agency or official of the United 
States) without regard to section 2412 of title 28, United States Code, 
or any other provision of law . . ." 

38. 15 U.S.C.§ 2060(c). 

"A court may in the interest of justice include in such relief an 
award of the costs of the suit, including reasonable attorneys' fees. . . . 
Attorneys' fees may be awarded against the United States (or any 
agency or official of the United States) without regard to section 
2412 of title 28, United States Code, or any other provision of law." 

39. 15 U.S.C. 2072(a). 

"Any person who shall sustain injury by reason of any knowing 
(including willful) violation of any consumer product safety rule, or 
any other rule or order issued by the (Consumer Product Safety) Com- 
mission . . . may. if the court determines it to be in the interest of 
justice, recover the costs of suit, including reasonable attorneys' 
fees. . . ." 

40.15 U.S.C. 2073. 

"In any action under this section the court may in the interest of 
justice award the costs of suit, including reasonable attorneys' fees. . . ." 

41. Magnuson-Moss Warranty Act— 15 U.S.C. § 2310(d) (2). 

"If a consumer finally prevails in any action brought under para- 
graph (1) of this subsection, he may be allowed by the court to 
recover as part of the judgment a sum equal to the aggregate amount 
of costs and expenses (including attorneys' fees based on actual 
time expended) . . . unless the court in its discretion shall determine 
that such an award of attornevs' fees would be inappropriate." 

42. Toxic Substances Control Act (Public Law 94-469. § 20(c) (2) ) — 
15 U.S.C. § 2619(c) (2). 

"The court, in issuing any final order in any action brought pur- 
suant to subsection (a), may award costs of suit and reasonable fees 
for attorneys and expert witnesses if the court determines that such 
an award is appropriate. Any court, in issuing its decision in an 
action brought to review such an order, may award costs of suit and 
reasonable fees for attorneys if the court determines that such an 
award is appropriate." 

43. Copyright Act (Public Law 94-553)— 17 U.S.C. § 505. 

"In any civil action under this title, the court in its discretion may 
allow the recovery of full costs by or against any party other than 
the United States or an officer thereof. Except as otherwise provided 
by this title, the court may also award a reasonable attorney's fee to the 
prevailing party as part of the costs." 



308 



44. Organized Crime Control Act of 1970—1% U.S.C. § 1964(c). 
"Any person injured in his business or property by reason of a 

violation of section 1902 of this chapter may . . . sue and shall re- 
cover ... a reasonable attorney's fee." 

45. Wire Interception Act— 18 U.S.C. § 25-20. 

"Any person whose wire or oral communication is intercepted, dis- 
closed, or used in violation of Ibis chapter shall . . . be entitled to 
recover ... a reasonable attorney's fee. . . ." 

46. Education Amendments of ) 972— 10 U.S.C. § 1617. 

"Upon the entry of a final order by a court of the United States 
against a local education agency, a State (or any agency thereof), or 
the United States (or any agency thereof), for failure to comply with 
any provision of this chapter or for discrimination on the basis of race, 
color, or national origin in violation of title VI of the Civil Rights Act 
of 1964, or the fourteenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary education, the 
court, in its discretion, may allow the prevailing party, other than the 
United States, a reasonable attorney's fee as part of the costs." 

47. Mexican- American Chamizal Convention Act of 196 % — 22 
U.S.C. § 277d-21. 

"The Commissioner, in rendering an award in favor of any claimant 
under section 277d-19 of this title, may, as part of such award, deter- 
mine and allow reasonable attorneys' fees which shall not exceed 10 
per centum of the amount awarded, to be paid out of but not in addi- 
tion to the amount of the award, to the attorneys representing the 
claimant. . . ." 

48. International Claims Settlement Act— -22 U.S.C. § 1623(f). 
"No remuneration on account of services rendered on behalf of any 

claimant in connection with any claim filed with the Commission un- 
der this subchapter shall exceed 10 per centum of the total amount paid 
pursuant to any award. . . ." 

49. Federal Tort Claims Act— -28 U.S.C. §2678. 

"No attorney shall charge, demand, receive, or collect for services 
rendered, fees in excess of 25 per centum of an} 7 judgment. . . ." 

50. Federal Rules of Civil Procedure— -28 U.S.C. App. Rule 37. 

(a) Motion for order compelling discovery : 

"If the motion is granted, the court shall, after opportunity for 
hearing, require the party or deponent whose conduct necessitated the 
motion or the party or attorney advising such conduct or both of them 
to pay the moving party the reasonable expenses incurred in obtaining 
the order, including attorney's fees, unless the court finds that the op- 
position to the motion was substantially justified or that other circum- 
stances make an award of expenses unjust. 

"If the motion is denied, the court shall, after opportunity for hear- 
ing, require the moving party or the attorney advising the motion or 
both of them to pay to the party or deponent who opposed the motion 
the reasonable expenses incurred in opposing the motion, including at- 
torney's fees, unless the court finds that the making of the motion was 
substantially justified or that other circumstances make an award of 
expenses unjust." 

(b) Failure to comply with order : 

"In lieu of any of the foregoing orders or in addition thereto, the 
court shall require the party failing to obey the order or the attorney 



309 



advising him or both to pay the reasonable expenses, including attor- 
ney's fees, caused by the failure, unless the court finds that the failure 
was substantially justified or that other circumstances make an award 
of expenses unjust.'' 

(c) Expenses on failure to admit : 

"If a party fails to admit the genuineness of any document or the 
truth of any matter as requested under Rule 36, and if the party re- 
questing the admissions thereafter proves the genuiness of the docu- 
ment or the truth of the matter, he may apply to the court for an order 
requiring the other party to pay him the reasonable expenses incurred 
in making that proof, including reasonable attorney's fees. . . ." 

(d) Failure of party to attend at own deposition or serve answers 
to interrogatories or respond to request for inspection : 

"In lieu of any order or in addition thereto, the court shall require 
the party failing to act or the attorney advising him or both to pay the 
reasonable expenses, including attorney's fees, caused by the failure, 
unless the court finds that the failure was substantially justified or that 
other circumstances make an award of expenses unjust.'' 

51. Norris-LaGuardia Act— 29 Y.S.C.§ 107(e). 

"Xo temporary restraining order or temporary injunction shall be 
issued except on condition that complainant shall first file an under- 
taking with adequate security in an amount to be fixed by the court suf- 
ficient to recompense those enjoined for any loss, expense, or damage 
caused by the improvident or erroneous issuance of such order or in- 
junction, including all reasonable costs (together with a reasonable 
attornev's fee) and expenses of defense. . . ." 

52. Fair Labor Standards Act— 29 U.S.C. § 216 (b) . 

"The court in such action shall, in addition to any judgment awarded 
to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid 
by the defendant, and costs of the action." 

53. Labor-Management Reporting and Disclosure Act of 1959 — 29 
U.S.C. § 431(c). 

"The court in such action may, in its discretion, in addition to any 
judgment, awarded to the plaintiff or plaintiffs, allow a reasonable at- 
torney's fee to be paid by the defendant, and costs of the action." 

54. 29 U.S.C. 501(b). 

"The trial judge may allot a reasonable part of the recovery in any 
action under this subsection to pav the fees of counsel prosecuting the 
suit. . . ." 

55. Employee Retirement Income Security Act — 29 U.S.C. § 1132 

(«)• 

"In any action under this subchapter by a participant, beneficiary, 
or fiduciary, the court in its discretion may allow a reasonable attor- 
ney's fee and costs of the action to either partv." 

56. Coal Mine Safety Act—?>0 U.S.C. § 938 (c) . 

"Whenever an order is issued under this subchapter granting relief 
to a miner at the request of such miner, a sum equal to the aggregate 
amount of all costs and expenses (including the attorney's fees) . . . 
shall be assessed against the person committing the violation." 

57. State and Local Fiscal Assistance Amendments of 1976 (Public 
Law 94-488, § 7(b) )— 31 U.S.C. § 1244(e) . 

"In any action under this section to enforce section 122(a), the 
court, in its discretion, may allow to the prevailing party, other than 



310 



the United States, reasonable attorney fees, and the United States 
shall be liable for Pees and costs the same as a private person." 

58. Longshoremen and Harbor Workers'* Compensation Act — 33 
U.S.C. § 928. 

t "(T)nere shall be awarded, in addition to the award of compensa- 
tion, in a compensation order, a reasonable attorney's fee against the 
employee or carrier . . ." 

59. Water Pollution Prevention and Control Act— 33 U.S.C. 
§ L36p(d). 

"The court, in issuing any final order in any action brought pursu- 
ant to this section, may award costs of litigation (including reasonable 
attorney and expert witness fees) to any party, whenever the court 
determines such award is appropriate." 

60. 33 U.S.C. § 1367(c). 

"(A) sum equal to the aggregate amount of all costs and expenses 
(including the attorney's fees), as determined by the Secretary of 
Labor . . . shall be assessed against the person committing such 
yiolation." 

61. Ocean Dumping Act— S3 U.S.C. § 1415(g) (4). 

"The court, in issuing any final order in any suit brought pursuant 
to paragraph (1) of this subsection may award costs of litigation (in- 
cluding reasonable attorney and expert witness fees) to any party, 
whenever the court determines such award is appropriate." 

62. Deepwater Ports Act — 33, U.S.C. § 1515(d). 

"The Court, in issuing any final order in any action brought pursu- 
ant to subsection (a) of this section, may award costs of litigation (in- 
cluding reasonable attorney and expert witness fees) to any party 
Whenever the court determines such award is appropriate." 

63. Patent Infringement—^ U.S.C. § 285. 

"The court in exceptional cases may award reasonable attorney fees 
to the prevailing party." 

64. Servicemen 's Group Life Insurance Act — 38 U.S.C. § 784(g). 
"(T)he court, as a part of its judgment decree, shall determine and 

allow reasonable fees for the attorneys of the successful party or 
parties " 

65. Veterans' Benefits Act— 38 U.S.C. § 3404 (c) . 

"The Administrator shall determine and pay fees to agents or at- 
torneys recognized under this section in allowed claims for monetary 
benefits under laws administered by the Veterans' Administration. 
Such fees . . . shall be deducted from monetary benefits claimed and 
allowed." 

66. Safe Drinking Water Act— 42 U.S.C. § 300j-8 (d) . 

"The court, in isuing any final order in any action brought under 
subsection (a) of this section, may award costs of litigation (includ- 
ing reasonable attorney and expert witness fees) to any party when- 
ever the court determines such an award is appropriate." 

67. Social Security Act Amendments of 1965-A2 U.S.C. § 406. 

(a) "Whenever the Secretary, in any claim before him for benefits 
under this subchapter makes a determination favorable to the claim- 
ant, he shall, if the claimant was represented by an attorney in con- 
nection with such claim, fix . . . a reasonable fee to compensate such 
attorney. ..." 



311 



(b) "Whenever a court renders a judgment favorable to a claimant 
under this subchapter who was represented before the court by an 
attorney, the court may determine and allow as part of its judgment 
a reasonable fee for such representation. . . ." (Both subsections (a) 
and (b) provide for payment out of past-due benefits.) 

68. Clean Air Act Amendments of 1970 — £2 U.S.C. § 1857h-2(d). 

"The court, in issuing an}" final order in any action brought pursu- 
ant to subsection (a) of this section, may award costs of litigation (in- 
cluding reasonable attorney and expert witness fees) to any party, 
whenever the court determines such award is appropriate." 

69. Voting Rights Amendments of 1975 (Public Law 94-73, § 402) — 
42 U.S.C. § 19731(e). 

"In any action or proceeding to enforce the voting guarantees of the 
fourteenth or fifteenth amendment, the court, in its discretion, may 
allow the prevailing party, other than the United States, a reasonable 
attorney's fee as part of the costs." 

70. Civil Rights Attorney's Fees Awards Act (Public Law 94-559) — 
42 U.S.C. § 1988. 

"In any action or proceeding to enforce a provision of (42 U.S.C. 
§§ 1981, 1982, 1983, 1985, and 1986, 20 U.S.C. § 1681), or in any civil 
action or proceeding, by or on behalf of the L T nited States of America, 
to enforce, or charging a violation of, a provision of the United States 
Internal Revenue Code, or (42 U.S.C. § 2000d), the court, in its dis- 
cretion, may allow the prevailing party, other than the United States, 
a reasonable attorney's fee as part of the costs." 

71. Civil Rights Act of 1964, title II— 42 U.S.C. § 2000a-3 (b) . 

"In any action commenced pursuant to this subchapter, the court, 
in its discretion, ma}" allow the prevailing party, other than the 
United States, a reasonable attorney's fee as part of the costs, and the 
LTnited States shall be liable for costs the same as a private person." 

72. Civil Rights Act of 1964, title VIII- 42 U.S.C. §2000e-5(k). 
"In any action or proceeding under this subchapter the court, in its 

discretion, may allow the prevailing party, other than the (Equal 
Employment Opportunity) Commission or the United States, a rea- 
sonable attorney's fee as part of the costs, and the Commission and 
the United States shall be liable for costs the same as a private person." 

73. Legal Services Corporation Act-^2 U.S.C. §2996e(f). 

"If an action is commenced by the Corporation or by a recipient 
and a final order is entered in favor of the defendant and against the 
Corporation or a recipient's plaintiff, the court may. upon motion by 
the defendant and upon a finding by the court that the action was 
commenced or pursued for the sole purpose of harassment of the 
defendant or that the Corporation or a recipient's plaintiff maliciously 
abused legal process, enter an order . . . awarding reasonable costs 
and lesrnl fees incurred bv the defend nnt " 

74. Fair Housing Act of 1968-42 U.S.C. § 3612 (c) . 

"The court may grant as relief, as it deems appropriate . . . reason- 
able attornev fees in the case of a prevailing plaintiff : Provided, That 
the said plaintiff in the opinion of the court is not financially able to 
assume said attorney's fees." 

75. Omnibus Crime Control and Safe Streets Act of 1968 Amend- 
ments (Public Law 94-503, § 122) — 42 U.S.C. 3766(c) (4) (B). 



312 



"In any civil action brought by a private person to enforce com- 
pliance with any provision of this subsection, the court may grant 
to a prevailing plaintiff reasonable attorney fees, unless the court 
determines that the lawsuit is frivolous, vexatious, brought for 
harassment purposes, or brought principally for t he purpose of gain- 
ing attorney fees." 

76. Noise Control Act of 1972— 42 U.S.C. § 4911(d) 

"The court, in issuing any final order in any action brought pur- 
suant to subsection (a) of this section, may award costs of litigation 
( including reasonable attorney and expert witness fees) to any party, 
whenever the court determines such an award is appropriate." 

77. Railway Labor Act— 45 U.S.C. g 153(p). 

"If the petitioner shall finally prevail he shall be allowed a reason- 
able attorney's fee to be taxed and collected as part of the costs of 
the suit." 

78. Merchant Marine Act of 1936— 46 U.S.C. § 1227. 

"Any person who shall be injured in his business or property by 
reason of anything forbidden by this section may sue therefor . . . and 
shall recover ... a reasonable attorney's fee." 

79. Communications Act of 1934—4:7 U.S.C. § 206. 

"In case any common carrier shall do, or cause or permit to be done, 
any act, matter, or thing in this chapter prohibited or declared to be 
unlawful . . . such common carrier shall be liable to the person or per- 
sons injured thereby for ... a reasonable counsel or attorney's fee, to 
be fixed by the court in every case of recovery, which attorney's fee 
shall be taxed and collected as part of the costs in the case. 

80. 47 U.S.C. § 407. 

"If the petitioner shall finally prevail, he shall be allowed a reason- 
able attorney's fee, to be taxed and collected as part of the costs of the 
suit," 

81. Interstate Commerce Act— 49 U.S.C. § 8. 

"In case any common carrier subject to the provisions of this chap- 
ter shall do, cause to be done, or permit to be done any act. matter, or 
thing in this chapter prohibited or declared to be unlawful . . . such 
common carrier shall be liable to the person or persons injured thereby 
for ... a reasonable counsel or attorney's fee, to be fixed by the court 
in every case of recovery, which attorney's fee shall be taxed and 
collected as part of the costs in the case." 

82. 49 U.S.C. § 15(9). 

"In any judgment which may be rendered the plaintiff shall be 
allowed to recover against the defendant a reasonable attorney's fee 
to be taxed in the case." 

83. 49 U.S.C. § 16(2). 

"If the plaintiff shall finally prevail he shall be allowed a reasonable 
attorney's fee, to be taxed and collected as a part of the costs of the 
suit," 

84. 49 U.S.C. § 20(12). 

"The common carrier . . . shall be entitled to recover . . . the amount 
of any expense reasonably incurred by it in defending any action at 
law. . . ." 

85.49 U.S.C. §94. 

"The court may also in its discretion order the payment of the car- 
rier's reasonable costs and counsel fees. . . ." 



313 



86. 49 U.S.C. § 908. 

(b) "In case any carrier shall do, cause to be clone, or permit to be 
done any act, matter, or thing in this chapter prohibited or declared 
to be unlawful . . . such carrier shall be liable to the person or persons 
injured thereby for ... a reasonable counsel or attorney's fee, to be 
fixed by the court in every case of recovery, which attorney's fee shall 
be* taxed and collected as part of the costs in the case." 

87. (e) "If the plaintiff shall finally prevail he shall be allowed a 
reasonable attorney's fee, to be taxed and collected as a part of the costs 
of the suit." 

88. 49 U.S.C. § 1017(b) (2). 

"The party who prevails in any such action may, in the discretion 
of the court, recover reasonable attorney's fees to be fixed by the 
court. . . ." 

89. Trading With the Enemy Act— 50 U.S.C. App. § 20. 

"No property or interest or proceeds shall be returned under this 
Act . . . unless satisfactory evidence is furnished . . . that the aggregate 
of the fees to be paid to all agents, attorneys at law or in fact, or repre- 
sentatives, for services rendered in connection with such return or pay- 
ment or judgment does not exceed 10 per centum of the value of such 
property or interest or proceeds or of such payment." 

90. Japanese- American Evacuation Claims Act of 1948 — 50 U.S.C. 
App. § 1985. 

"The Attorney General, in rendering an award in favor of any 
claimant, may as a part of the award determine and allow reasonable 
attorneys' fees, which shall not exceed 10 per centum of the amount 
allowed, to be paid out of, but not in addition to, the amount of such 
award." 

o